EXHIBIT 10.1
AMENDMENT AGREEMENT NO. 2
XXXXX TRANSPORTATION COMPANY
This AMENDMENT AGREEMENT No. 2 (this "Amendment"), is made as of June 4,
1997, among Xxxxx Transportation Company ("Xxxxx"), each of its Restricted
Subsidiaries (collectively with Xxxxx, the "Borrowers"), BankBoston, N.A. (f/k/a
The First National Bank of Boston), such other lenders that are or may become
parties to the Credit Agreement referred to below (each, a "Bank" and,
collectively, the "Banks") and BankBoston, N.A., as agent for the Banks (the
"Agent").
WHEREAS, the Borrowers, the Banks and the Agent are parties to that certain
Revolving Credit Agreement, dated as of July 11, 1994, (as amended, restated,
modified and in effect from time to time, the "Credit Agreement"), pursuant to
which the Banks, upon certain terms and conditions, have agreed to make
Revolving Credit Loans to the Borrowers; and
WHEREAS, the parties hereto wish to amend certain provisions of the Credit
Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have the
same meanings herein as in the Credit Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is here by amended by adding the
following new definitions thereto in the correct alphabetical sequence:
CONSOLIDATED EBITDA. For any Person and for any fiscal period, anamount
equal to the sum of (a) Earnings Before Interest and Taxes for such Person and
its consolidated Restricted Subsidiaries for such period, plus (b) depreciation
and amortization for such Persons for such period, in each case determined on a
consolidated basis for such Persons in accordance with generally accepted
accounting principles.
CONSOLIDATED FUNDED INDEBTEDNESS. For any Person and s of any date of
determination, all Indebtedness of such Person and its consolidated Restricted
Subsidiaries for borrowed money, the deferred purchase price of assets and
Capitalized Leases.
(b) Section 1. 1 of the Credit Agreement is hereby amended by deleting the
definition of "Revolving Credit Loan Maturity Date" set forth therein in its
entirety, and substituting in lieu thereof the following new definition:
REVOLVING CREDIT LOAN MATURITY DATE. July 11, 2000.
(c) Section 2.2 of the Credit Agreement is hereby amended by deleting the
text "three quarters of one percent (3/4%)" occurring in the fourth line thereof
and substituting in lieu thereof the text: "three-eighths of one percent
(3/8%)".
(d) Section 2.5(a)(ii) of the Credit Agreement is hereby amended by
deleting the text "two and one quarter percent (2-1/4%)" occurring in the third
and fourth lines thereof, and substituting in lieu thereof the text: "one and
three quarters percent (1-3/4%)".
(e) Section 4.6 of the Credit Agreement is hereby amended by deleting the
text "2-1/4%" occurring in the third line thereof, and substituting in lieu
thereof the text: "one and three-quarters percent (1-3/4%)".
(f) Section 10 of the Credit Agreement is hereby amended by adding the
following new section thereto:
Section 10.2 MAXIMUM LEVERAGE RATIO. The Borrowers will not permit the
ratio of Consolidated Funded Indebtedness of Xxxxx and its Restricted
Subsidiaries to Consolidated EBITDA of Xxxxx and its Restricted Subsidiaries, as
measured at the end of each fiscal quarter of Xxxxx for the period of the four
immediately preceding fiscal quarters, to be greater than 6.00: 1.
(g) Exhibit E to the Credit Agreement is hereby amended by deleting such
exhibit in its entirety, and substituting in lieu thereof Exhibit E attached
hereto.
Section 3. AFFIRMATION OF THE BORROWERS. The Borrowers hereby affirm their
joint and several, absolute and unconditional promise to pay to the Banks the
Revolving Credit loans and all other amounts due under the Credit Agreement, as
amended hereby, and the other Loan Documents. The Borrowers hereby represent,
warrant and confirm that the Obligations, as amended hereby, are and remain
secured pursuant to the Security Documents.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby jointly
and severally represent and warrant to the Banks as follows:
(a) The execution and delivery by the Borrowers of this Amendment and all
other instruments and agreements required to be executed and delivered by the
Borrowers in connection with the transactions contemplated hereby or referred to
herein (collectively, the "Amendment Documents"), and the performance by the
Borrowers of their obligations and agreements under the Amendment Documents and
the Credit Agreement as amended hereby, are within the corporate authority of
each of the Borrowers, have been authorized by all necessary corporate
proceedings on behalf of each such Person, and do not and will not contravene
any provision of law or any of such Person's charter, other incorporation
papers, by-laws or any stock provision or any amendment thereof or of any
indenture, agreement, instrument or undertaking binding upon any such Persons.
(b) This Amendment and the Credit Agreement as amended hereby constitute
legal, valid and binding obligations of the Borrowers, enforceable in accordance
with their respective terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting generally
the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental agency or
authority is required to make valid and legally binding the execution, delivery
or performance by the Borrowers of the Amendment Documents or the Credit
Agreement as amended hereby, or the consummation by the Borrowers of the
transactions contemplated hereby and thereby or referred to herein.
(d) The representations and warranties contained in Section 7 of the
Credit Agreement were correct at and as of the date made and are also correct at
and as of the date hereof, with the same effect as if made at and as of the date
hereof (except to the extent of changes (i) resulting from transactions
contemplated or permitted by the Credit Agreement, as amended hereby, and the
other Loan Documents or (ii) occurring in the ordinary course of business that
singly or in the aggregate would not have a materially adverse effect on the
business or financial condition of Xxxxx and its Restricted Subsidiaries on a
consolidated basis, or to the extent that such representations and warranties
relate expressly to an earlier date or have been waived by the Banks).
(e) As of the date here of there exists no Default or Event of Default or
condition which, with either or both the giving of notice or the lapse of time,
would result in a Default or an Event of Default, both before and after giving
effect to the Amendment Documents.
SECTION 5. EFFECTIVENESS. This Amendment shall become effective as of the
date here of upon the satisfaction, on or prior to June 13, 1997, of each of the
conditions precedent set forth in this Section 5.
(a) DELIVERY. The Borrowers, the Banks and the Agent shall have executed
and delivered this Amendment.
(b) PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Amendment and all documents incident thereto
shall be reasonably satisfactory in substance and form to the Agent and its
counsel, and the Agent shall have received all information and such counterpart
originals or certified or other copies of such documents as the Agent may
reasonably request.
(c) CLOSING FEE. The Borrowers shall have paid to the Agent, for the pro
rata accounts of the Banks, a closing fee equal to $25,000.
(d) COMMERCIAL FINANCE EXAMINATION. The Agent shall have received a
commercial finance examination of the Borrower's Accounts Receivable and
inventory and such commercial finance examination shall be satisfactory to the
Agent in all respects.
(e) FINANCIAL CONDITION. No material adverse change, in the judgment of
the Banks, shall have occurred in the financial condition, business or prospects
of the Borrowers since the most recent financial statements provided to the
Banks pursuant to Section 8.4 of the Credit Agreement.
SECTION 6. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Amendment, an of the
terms, conditions and provisions of the Credit Agreement (including without
limitation the affirmative covenants of the Borrowers contained in Section 8 of
the Credit Agreement, the negative covenants of the Borrowers contained in
Section 9 of the Credit Agreement and the financial covenants of the Borrowers
contained in Section 10 of the Credit Agreement) shall remain the same. It is
declared and agreed by each of the parties hereto that the Credit Agreement, as
amended hereby, shall continue in full force and effect, and that this Amendment
and the Credit Agreement shall be read and construed as one instrument.
(b) This Amendment is intended to take effect as an agreement under seal
and shall be construed according to and governed by the internal laws of The
Commonwealth of Massachusetts.
(c) This Amendment may be executed in any number of counterparts, but all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
(d) The Borrowers hereby agree to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this Amendment (including
without limitation reasonable legal fees and expenses, and the costs of a
commercial finance examination and, inventory appraisal).
IN WITNESS WHEREOF, the parties hereto have executed his Amendment as of
the date first written above.
XXXXX TRANSPORTATION COMPANY
XXXXX TOWING CORPORATION
XXXXXX BAY TOWING COMPANY OF
PENNSYLVANIA
XXXXXX BAY TOWING COMPANY OF
VIRGINIA
FLORIDA TOWING COMPANY
XXXXXXXX SHIPYARD,INC.
XXXXX BARGE CORP.
XXXXX SHIPYARD CORPORATION
XXXXX TOWING OF TEXAS INC.
By: /s/ Xxxxxxx X. XxxXxxx
President
XXXXX TOWING OF DELAWARE, INC. XXXXX
BULK CORPORATION
HAMPTON ROADS LAND COMPANY,INC. XXXXX
INSURANCE COMPANY LIMITED PORTSMOUTH
NAVIGATION
CORPORATION
By: /s/ Xxxxxxx X. XxXxxxx
Vice President - Xxxxx Bulk
Vice President - Xxxxx Towing Delaware, Inc.
Vice President of Hampton Roads
Lands Company, Inc.
Chairman and President of Xxxxx
Insurance Company Limited
Vice President of Portsmouth
Navigation Corporation
XXXXX SERVICES CORPORATION
PETROLEUM TRANSPORT CORPORATION
SEABOARD BARGE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Title: President
BANKBOSTON, N.A. (F/K/A THE FIRST NATIONAL BANK OF
BOSTON), INDIVIDUALLY AND AS AGENT
By: /s/ Xxxxxx Xxxxxx
Title: Vice President
EXHIBIT E
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FORM OF
COMPLIANCE CERTIFICATE
----------------------
[Date]
To the Banks Party to the
Credit Agreement Referred to Below
c/o BankBoston, N.A., (f/k/a The First
National Bank of Boston), as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Transportation Division
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of July 11,
1994 (as amended and in effect from time to time, the "Credit Agreement"), by
and among Xxxxx Transportation Company ("Xxxxx") and the other Borrowers named
therein (the "Borrowers"), BankBoston, N.A. (f/k/a The First National Bank of
Boston), such other lenders that are or may become parties thereto from time to
time (collectively, the "Banks") and BankBoston, N.A. (f(k/a The First National
Bank of Boston) as agent for the Banks (the "Agent"). Capitalized terms used
herein without definition and which are defined in the Credit Agreement shall
have the respective meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 8.4(d) of the Credit Agreement, Xxxxx, by the
undersigned officers of Xxxxx (who have reviewed the Loan Documents), hereby
certifies to each of you, on behalf of itself and each of the other Borrowers,
as follows: (a) the information furnished in the calculations attached hereto
was true and correct as of the last day of the fiscal year] [quarter] next
preceding the date of this certificate; (b) as of the date of this certificate,
there exists no Default or Event of Default or condition which would, with
either or both the giving of notice or the lapse of time, result in a Default or
an Event of Default; and (c) the financial statements delivered herewith were
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with prior periods (except, in the case of quarterly
statements, for provisions for footnotes and, in all cases, except as disclosed
therein).
Compliance Certificate Worksheet
I. SECTION 10. OPERATING CASH FLOW TO DEBT SERVICE:
(calculated on a consolidated basis)
A. Earnings Before Interest and Taxes: $
B. Plus: depreciation and amortization: $
C. Less: cash taxes: $
D. Operating Cash Flow
(A+B+C):
E. Total Financial Obligations
due FOR period: $
F. Plus: Total Interest Expense: $
G. Total Debt Service (E+F): $
COMPUTED RATIO (D / G):
Minimum ratio required: 1.35:1.00
Excess (deficiency) in ratio
II. SECTION 10.2 MAXIMUM LEVERAGE RATIO:
(calculated on a consolidated basis)
A. Consolidated Funded Indebtedness: $
B. Earnings Before Interest and Taxes: $
C. Plus: depreciation and amortization: $
D. Consolidated EBITDA (B+C): $
COMPUTED RATIO (A--. D):
Maximum ratio permitted: 6.00:1
Excess (deficiency) in ratio:
IN WITNESS THEREOF, each of the undersigned has executed this Compliance
Certificate as of the date first written above.
XXXXX TRANSPORTATION COMPANY
By:
Name:
Title:
By:
Name:
Title:
