FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "First
Amendment") is entered into as of January 21, 2000 among(collectively the
"Banks" and, individually, a "Bank") and FIRST UNION NATIONAL BANK, as agent for
the Banks ("First Union").
BACKGROUND
The Xxxx Companies, the Banks and First Union are parties to an Amended
and Restated Credit Agreement dated as of February 25, 1999 (the "Credit
Agreement") pursuant to which the Banks agreed to make available to the Xxxx
Companies certain loans, upon the terms and conditions specified in the Credit
Agreement. All terms capitalized but not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.
The Xxxx Companies have requested that the Banks make available to the
Xxxx Companies a loan (the "Second Term Loan") in the amount of $10,000,000.
The Banks have agreed to make the Second Term Loan subject to the terms
and conditions set forth herein.
NOW, THEREFORE, incorporating the Background Section herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby agree
as follows:
Amendments to Credit Agreement
All amendments to the Credit Agreement and waivers of Events of Default
contained herein are deemed effective as of December 31, 1999.
Section 1.1 of the Credit Agreement is supplemented by adding the
following definitions thereto:
"First Amendment" shall mean that certain First Amendment to Amended and
Restated Credit Agreement, dated the First Amendment Closing Date, among the
Xxxx Companies, First Union and the Banks.
"First Amendment Closing Date" shall mean January 21, 2000.
"Second Term Loan" shall have the meaning set forth in Section 2.1(d).
The following definitions contained in Section 1.1 of the Credit
Agreement are hereby amended and restated to read in their entirety as follows:
"Default Rate" shall mean on any Loan the higher of 2% per annum above the
Base Rate or 2% per annum above the rate of interest otherwise in effect for
such Loan (whether a Revolving Loan, a Term Loan or the Second Term Loan).
"Required Banks" at any time shall mean Banks whose Revolving Loan
Commitments and Term Loan Commitments equal or exceed 66 2/3% of the Aggregate
Revolving Loan Commitment and Aggregate Term Loan Commitment taken together, if
no Revolving Loans or Term Loans are outstanding or, if Revolving Loans or Term
Loans are outstanding, Banks whose outstanding Revolving Loans and Term Loans
equal or exceed 66 2/3% of the Revolving Loans and Terms Loans. For purposes of
making a Required Banks determination, the Second Term Loan shall not be
considered.
Any references in Section 2.1 of the Credit Agreement or elsewhere in the
Credit Agreement to the term "Loans" shall mean the Revolving Loans, the Term
Loans and the Second Term Loan. Section 2.1 of the Credit Agreement is
supplemented by adding the following subsection 2.1(d) thereto:
(d) Second Term Loan. Subject to the terms and conditions herein set
forth, each Bank agrees, severally, and not jointly, to make a loan
(herein called the "Second Term Loan") to the Xxxx Companies, in an
amount not to exceed at anytime the commitment amount set forth
opposite the name of such Bank below (each such amount, as the same
shall be reduced, being hereinafter called such Bank's "Second Term
Loan Commitment"), during the period beginning on the First Amendment
Closing Date and ending on June 30, 2000. Amounts prepaid or paid with
respect to the Second Term Loan may not be reborrowed.
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Bank Second Term Loan Commitment
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First Union National Bank $6,800,000
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Wilmington Trust of Pennsylvania 1,280,000
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Summit Bank 1,280,000
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MBC Leasing Corp. 640,000
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Section 2.2(a) of the Credit Agreement is amended and restated in its
entirety to read as follows :
(a) Revolving Notes. The Revolving Loans made by each Bank shall be
evidenced by one or more promissory notes of the Xxxx Companies under
which they shall be jointly and severally liable (each such promissory
note as it may be amended, extended, modified, restated, replaced,
substituted for or renewed, being referred to herein as a "Revolving
Note" and all Revolving Notes together as the "Revolving Notes", and
together with the Term Notes, and the Second Term Notes, the "Notes")
in principal face amount equal to such Bank's Revolving Loan
Commitment payable to the order of such Bank and otherwise in the form
attached hereto as Exhibit B-1. Each Revolving Note shall be dated its
date of issuance,
shall bear interest at the rate per annum and be payable as to
principal and interest in accordance with the terms hereof. Each
Revolving Note shall mature on the earlier to occur of (i) November
17, 2000 (provided, however that, absent the existence of an Event of
Default or a Potential Default on such date, the Xxxx Companies may
extend such date to November 17, 2001); or (ii) the date the maturity
of the Notes are accelerated as provided inss.8.1 hereof (the earlier
of the foregoing to be deemed the "Revolving Credit Termination
Date"). Upon maturity, the Revolving Loans evidenced by each Bank's
Revolving Note shall be due and payable. Each Bank shall maintain
records of all Revolving Loans by it and evidenced by its Revolving
Note and all payments thereon, which records shall be conclusive
absent manifest error.
The amendment of Section 2.2(a), as set forth above, confirms and supplements an
April 7, 1999 letter agreement amendment to Section 2.2(a) and such amendment
was and shall be deemed effective as of April 7, 1999.
The date "December 31, 1999" referenced in Section 2.2(b) of the Credit
Agreement shall be replaced with the date "June 30, 2000".
Any references in Section 2.2 of the Credit Agreement or elsewhere in the
Credit Agreement to the term "Notes" shall mean the Revolving Notes, the Term
Notes and the Second Term Notes. Section 2.2 of the Credit Agreement is
supplemented by adding the following subsection 2.2(c) thereto:
(c) Second Term Notes. The Second Term Loans made by each Bank shall be
evidenced by one or more promissory notes of the Xxxx Companies under
which they shall be jointly and severally liable (such promissory
notes as they may be amended, extended, modified, restated, replaced,
substituted for or renewed, being referred to herein as the "Second
Term Notes"; the Second Term Notes, together with the Revolving Notes
and the Term Notes are collectively referred to herein as the "Notes")
in a cumulative principal face amount equal to $10,000,000, payable to
the Banks in accordance with each Bank's Second Term Loan Commitment.
The Second Term Notes shall be dated the First Amendment Closing Date,
shall bear interest at the rate per annum and be payable as to
principal and interest in accordance with the terms hereof. The Second
Term Note shall be payable on June 30, 2000.
Section 2.4 of the Credit Agreement is supplemented by adding the
following subsection 2.4(e) thereto:
(e) Second Term Loan. Interest on the Second Term Loan shall accrue on the
outstanding principal of the Second Term Loan at an annual rate equal
to the Base Rate plus one and one-quarter percent (1.25%).
Section 2.6 of the Credit Agreement is supplemented by adding the
following subsection 2.6(a)(iii) thereto:
(iii) Second Term Loan. The Xxxx Companies may at any time and from time to
time permanently reduce the Second Term Loan and shall reduce the
Second Term Loan in accordance with the terms of Section H of the
First Amendment. In the event any monies are received in respect of
the Insurance Claims, all proceeds shall be used promptly upon receipt
thereof to prepay and permanently reduce first the Term Loans and then
the Second Term Loan, in accordance with ss. 2.7(d) hereof.
Section 2.7(d) of the Credit Agreement is amended and restated in its
entirety to read as follows:
(d) Proceeds of Insurance Claims. In the event any monies are paid in
respect of the Insurance Claims, such monies shall be used promptly
upon receipt thereof to permanently prepay the Term Loans. Thereafter,
any amounts remaining shall be used promptly upon receipt thereof to
permanently repay the Second Term Loan. Absent an Event of Default or
Potential Default, any amounts in excess of the amounts necessary to
prepay the Term Loans and the Second Term Loan shall be used promptly
upon receipt to non-permanently reduce the Revolving Loans. Upon an
Event of Default, all amounts in excess of the amounts necessary to
prepay the Term Loans and the Second Term Loan shall be used promptly
upon receipt to permanently reduce the Revolving Loans.
The last sentence of Section 2.7(e) of the Credit Agreement is amended
and restated in its entirety to read as follows: "Prepayment shall be made first
to the Term Loans, second to the Second Term Loan, and third to Revolving Loans
until such Loans are repaid in full.
Section 2.7 of the Credit Agreement is supplemented by adding the
following subsection 2.7(f) thereto:
(f) Second Term Loan. On one Business Day's notice to First Union, the
Xxxx Companies may, at their option, prepay the Second Term Loan in
whole or in part and shall repay the Second Term Loan in accordance
with the terms of Section H of the First Amendment.
Section 2.8 of the Credit Agreement is supplemented by adding the
following subsection 2.8(g) thereto:
(g) Second Term Loan. Accrued interest on the Second Term Loan shall be
due and payable on the first Business Day of each calendar month.
Section 5.1 of the Credit Agreement is supplemented by adding the
following Section 5.1(h):
(h) Accounts Receivable Agings. On or before the 15th day of each month,
the Xxxx Companies shall deliver to the Banks an accounts receivable
aging for the immediately preceding month, which aging shall include
such information as currently appears in the Xxxx Companies' agings.
Section 5.12 of the Credit Agreement is supplemented by adding the
following sentence at the end thereof: "The proceeds of the Second Term Loan
will be used for working capital financing."
Article 6 of the Credit Agreement is supplemented by adding the following
Section 6.11:
6.11 Tenant Receivables. Reduce, waive or defer payment of any tenant
receivables; provided, however, that the Xxxx Companies may: (i) reduce one or
more tenant receivables by not more than 10% of such tenant receivable in
connection with the collection of the such tenant receivable or the
renegotiation of the underlying lease; and (ii) may restate tenant receivables
earned between October 1, 1999 and June 30, 2000.
For purposes of calculating the financial covenants contained in Article
7 of the Credit Agreement, as of December 31, 1999 and March 31, 2000 the term
"Adjusted Net Income" shall: (i) include an additional amount equal to the
charges incurred in connection with TNX from October 1, 1998 through December
31, 1998; (ii) be increased to the extent, if any, that the Xxxx Companies'
income is decreased as a result of reserves taken in connection with Hurricane
Georges and/or the Xxxx Companies' receipt of the Term Loans.
For purposes of calculating the financial covenants contained in Article
7 of the Credit Agreement as of December 31, 1999 and March 31, 2000, no
consideration shall be given to the income and/or loss nor the change in
comprehensive income or loss of Riverfront for the fourth quarter of 1999 or the
first quarter of 2000.
Section 7.2 of the Credit Agreement is amended and restated in its
entirety to read as follows:
7.2 Maximum Adjusted Funded Debt to Adjusted EBITDA. The ratio of Adjusted
Funded Debt to Adjusted EBITDA shall not exceed the following:
Date Ratio
Through December 31, 1998 5.75:1
January 1 - March 31, 1999 5.25:1
April 1 - June 30, 1999 5.00:1
July 1, 1999 - March 31, 2001 4.75:1
April 1 - June 30, 2001 3.75:1
July 1 - September 30, 2001 3.50:1
October 1, 2001 and thereafter 3.25:1
This ratio shall be calculated as of the end of each Fiscal Quarter and
shall be for the four (4) most recently ended consecutive Fiscal Quarters.
For purposes of the above calculation as of December 31, 1999 and March 31,
2000, the Term Loan shall not be given effect.
Section 7.4 of the Credit Agreement is amended and restated in its
entirety to read as follows:
7.4 Minimum Interest Coverage. The ratio of Adjusted EBIT to Interest
Expense will not be less than:
Date Ratio
Through March 31, 2001 1.50:1
April 1, 2001 and thereafter 2.00:1
This ratio shall be calculated as of the end of each Fiscal Quarter and shall be
for the four (4) most recently ended consecutive Fiscal Quarters.
Section 7.5 of the Credit Agreement is amended and restated in its
entirety to read as follows:
7.5 Minimum Annualized Adjusted EBITDA. Annualized Adjusted EBITDA will not
be less than the following:
Date Adjusted EBITDA
Through March 31, 2001 $45,000,000
April 1, 2001 and thereafter $55,000,000
This amount shall be calculated as of the end of each Fiscal Quarter and shall
be for the four (4) most recently ended consecutive Fiscal Quarters.
Section 8.1 of the Credit Agreement is hereby amended by amending and
restating the last paragraph thereof to read as follows:
THEN and in every such event other than those specified in clause (d)
above, First Union (as agent hereunder and/or as a Bank, as the case may
be) may, in its sole discretion, or at the written request of the Required
Banks, terminate the Aggregate Revolving Loan Commitment, terminate the
Aggregate Term Loan Commitment, demand payment in full of the Second Term
Loan and declare the Notes, together with accrued interest thereon and all
other amounts payable under any Loan Document to be, and the same shall
thereupon become, due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Xxxx
Companies. Upon the occurrence of any event specified in clause (d) above,
the Aggregate Revolving Loan Commitment and the
Aggregate Term Loan Commitment shall automatically terminate and the Notes,
together with accrued interest thereon and all other amounts payable under
any Loan Document, shall immediately be due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Xxxx Companies. From and after the date an Event of
Default shall have occurred and for so long as any Event of Default shall
be continuing, the Loans shall bear interest at the Default Rate. Upon the
occurrence of an Event of Default, in addition to the rights set forth
above, First Union shall have the immediate right to enforce or realize on
any collateral security granted to in any manner or order it deems
expedient without regard to equitable principles of marshalling or
otherwise. In addition to any rights granted hereunder or in any of the
other Loan Documents, First Union and each Bank shall have all the rights
and remedies granted by applicable law, all of which shall be cumulative in
nature.
Section 9.1 of the Credit Agreement is amended and restated in its
entirety to read as follows:
9.1 Collateral. Notwithstanding anything to the contrary herein or in any
other Loan Document, any and all Revolving Loans, Letters of Credit, Term Loans
and Second Term Loans shall at all times be secured by first priority, perfected
security interests in the following assets, and the proceeds thereof (as such
assets are described in greater detail in the other Loan Documents, the
"Collateral"):
The whole of the five United States Registered Vessels:
S.S. Carolina, Official Number 530999
S.S. Guayama, Official Number 520694
S.S. Humacao, Official Number 514261
S.S. Mayaguez, Official Number 517450
S.S. Nuevo San Xxxx, Official Number 529004
Assignment of Insurances, dated November 17, 1998.
All of the issued and outstanding capital stock of:
NPR Holding Corporation
NPR, Inc.
NPR-Navieras Receivables, Inc.
NPR, S.A.
All Accounts, Tenant Receivables and related General Intangibles of
each of the Xxxx Companies.
All Proceeds of the Insurance Claims.
Items "A", "B" and "C" are collectively referred to herein as the "Primary
Revolving Collateral". Items "D" and "E" are collectively referred to herein as
the "Primary Term Collateral". Proceeds generated from Primary Revolving
Collateral shall be applied to Revolving Loans prior to the Term Loan and the
Second Term Loan. Proceeds generated from Primary Term Collateral shall be
applied to Term Loans and the Second Term Loan prior to the Revolving Loans. All
payments made on account of Term Loans and Second Term Loans (whether derived
from Primary Revolving Collateral, Primary Term Collateral or otherwise) shall
be made on a pro rata basis in accordance with the respective principal amounts
outstanding thereunder.
Section 9.2 of the Credit Agreement is amended and restated in its
entirety to read as follows:
Upon the payment in full of the Obligations and the termination of the
Aggregate Revolving Loan Commitment and the Aggregate Term Loan Commitment,
First Union shall release the lien and security interest it holds in, the
Collateral, and do such things as are reasonably requested by the Xxxx
Companies to effect such release.
The phrase "Revolving Note or Term Note" in Section 11.4(a) of the Credit
Agreement is replaced with the phrase "Revolving Note, Term Note, or Second Term
Note".
Section 11.7(b) of the Credit Agreement is amended by amending and
restating the first paragraph thereof in its entirety to read as follows:
(b) If an Event of Default or Potential Default shall have occurred and be
continuing, First Union and each Bank and the Xxxx Companies agree
that all proceeds obtained from the Collateral shall be applied by
First Union and the Banks as follows: Proceeds generated from the
Primary Revolving Collateral shall be applied in clauses Third through
Sixth first in respect of Revolving Loans until they shall be paid in
full, then in respect of Term Loans until they shall be paid in full
and then in respect of the Second Term Loan until it shall be paid in
full. Proceeds generated from Primary Term Collateral shall be applied
in clauses Third through Sixth first in respect of the Term Loans,
until they shall be paid in full, then in respect of the Second Term
Loan, until it shall be paid in full, and then in respect of Revolving
Loans until they shall be paid in full.
Schedule 1 (Section 6.10 - Indebtedness) of the Credit Agreement is
hereby supplemented by adding the following: "33. This Agreement, as amended
from time to time."
Notwithstanding anything to the contrary contained in any of the Loan
Documents, effective as of the First Amendment Closing Date, no LIBO Loans shall
be available to the Xxxx Companies.
Waiver of Existing Events of Default. First Union, on behalf of the
Banks, has advised the Xxxx Companies that it believes that the Events of
Default set forth on Schedule "A" hereto (the "Existing Defaults") have occurred
and are continuing. The Xxxx Companies dispute the existence of the Existing
Defaults. Regardless, the Banks hereby waive the Existing Defaults. Nothing
contained herein shall constitute a waiver by the Banks of any Events of Default
that may now or hereafter exist (including any subsequent Events of Default
resulting from the Xxxx Companies' failure to comply with the various terms and
conditions of the Loan Documents which caused the Existing Defaults) other than
the Existing Defaults.
Representations and Warranties. To induce the Banks to enter into this
First Amendment, each Xxxx Company makes the following representations and
warranties to the Banks, each and all of which shall survive the execution and
delivery of this First Amendment:
All corporate actions by each Xxxx Company and its respective officers,
directors and stockholders necessary for the due authorization, execution,
delivery and performance of this First Amendment or any agreement executed,
delivered or performed by the Xxxx Companies have been taken.
Each person executing the First Amendment or any agreement executed in
connection therewith on behalf of each Xxxx Company is an authorized officer of
such Xxxx Company and is duly authorized by such Xxxx Company to execute same.
This First Amendment is, and each other document executed by the Xxxx
Companies pursuant hereto will be, the legal, valid and binding obligation of
the Xxxx Companies, enforceable against the Xxxx Companies in accordance with
their respective terms, subject only to bankruptcy, insolvency, reorganization,
moratorium or other laws or equitable principles affecting creditors' rights
generally.
Each Xxxx Company is in compliance in all material respects with all laws
(including all applicable environmental laws), regulations, and requirements
applicable to its business and has not received, and has no knowledge of, any
order or notice of any governmental investigation or of any violation or claim
of violation of any law, regulation or other governmental requirement which
would have a material adverse effect upon its business operations or financial
condition.
The execution, delivery and performance of this First Amendment does not
and will not (i) conflict with, violate or result in a material breach of any
provision of any applicable law, rule, regulation or order or (ii) conflict or
result in a breach of any provision of the Articles of Incorporation, Charter or
Bylaws of any Xxxx Company. No authorization, consent or approval or other
action by, and no notice of or filing with, any governmental authority or
regulatory bodies are required to be obtained or made by any of the Xxxx
Companies for the due execution, delivery and performance of this First
Amendment.
The Xxxx Companies are in full compliance with all of the covenants and
conditions of the Credit Agreement, and the Loan Documents as amended hereby.
No default or Event of Default has occurred under the Loan Documents and
no event has occurred which, with the passage of time, the giving of notice, or
both, would result in a default or Event of Default under the Credit Agreement
or under any of the other Loan Documents.
The execution, delivery and performance of this First Amendment does not
and will not conflict with, violate or result in a breach of any provision of
any agreement relating to any Indebtedness for Borrowed Money of any Xxxx
Company, including, without limitation, that certain Indenture, dated as of
January 21, 1998 by The Xxxx Group, Inc, as Issuer, the Guarantors named
therein, as Guarantors, and The Bank of New York, as Trustee.
All of the Collateral is free and clear of liens, security interests and
other encumbrances, except for the liens and security interests created in favor
of the Banks pursuant to the Loan Documents.
Conditions Precedent to Enforceability of First Amendment. This First
Amendment shall be deemed effective only after the occurrence of the following
events:
The Xxxx Companies' execution and delivery to First Union of this First
Amendment and all other agreements, instruments and other documents contemplated
hereby, all in form and substance satisfactory to First Union, including but not
limited to:
Notes evidencing the Second Term Loan;
A First Amendment to Accounts and General Intangibles Security Agreement;
Assignments of Leases;
Preferred Ship Mortgages;
Reaffirmation of Pledge Agreement;
Guaranty from Xxxxxx X. Xxxx;
the December 31, 1998 personal financial statement of Xxxxxx X. Xxxx,
together with a certification of Xxxxxx X. Xxxx that there will be no
material changes between his December 31, 1998 and his December 31, 1999
personal financial statements, including the percentage interest held by
Xx. Xxxx in the Xxxx Companies and their affiliates and subsidiaries,
provided, however, that the value of Xx. Xxxx'x interests (but not the
percentage interest) in the Xxxx Companies and their affiliates and
subsidiaries may materially change;
an accounts receivable aging for the Xxxx Companies, as of December 31,
1999, or such other date reasonably acceptable to First Union;
an executed copy of the engagement letter (the "Engagement Letter") among
the Xxxx Companies and the Consultant (as defined herein);
the opinion of counsel to the Xxxx Companies, in the form attached; and
Corporate authorization documentation.
The Xxxx Companies' payment to First Union and the Banks, in immediately
available funds, of an amendment fee equal to $100,000.
The Xxxx Companies' payment to First Union and the Banks of an amount
sufficient to cover all of First Union's and the Banks' fees, costs and expenses
to date, including, without limitation, First Union's and the Banks' costs and
expenses incurred in connection with the preparation and negotiation of the
First Amendment (including the fees and expenses of First Union's and the Banks'
counsel) through the date of this First Amendment together with all other
obligations then payable by the Xxxx Companies to First Union and the Banks.
Conditions Subsequent.
The Xxxx Companies shall continue to retain the services of a crisis
manager/financial consultant (the "Consultant") acceptable to First Union and
the Banks. The Xxxx Companies shall cooperate with the Consultant in performing
the services set forth in the Engagement Letter and shall not impair the
Consultant's ability to perform such services. On or before February 4, 2000,
the Xxxx Companies and the Consultant shall provide the Banks with budgeted
weekly cash flows from February 1, 2000 through April 30, 2000. On or before
February 18, 2000, the Xxxx Companies and the Consultant shall provide the Banks
with budgeted weekly cash flows from May 1, 2000 through June 30, 2000. On or
before March 31, 2000 the Xxxx Companies and the Consultant shall provide the
Banks with a business plan for Fiscal Years 2000 and 2001, which business plan
shall include: (a) strategies and tactics to improve the Xxxx Companies'
economic model and which will serve as a basis for development of a capital
restructuring plan, (ii) an analysis of the operations of NPR, Inc. and its
subsidiaries on a stand-alone basis and (iii) an analysis of the business
relationships between Xxxx Hauling and Warehousing System, Inc. and its tenants.
The Xxxx Companies shall provide access to their facilities, assets and
books and records to enable one or more consultants retained by First Union to
complete by April 1, 2000, an evaluation/appraisal of the Collateral including,
but not limited to, the Insurance Claims and the Xxxx Companies' accounts and
vessels, and the Xxxx Companies shall fully cooperate with such consultants and
shall reimburse First Union, upon demand, for all fees and costs incurred by
First Union with respect to such consultants.
The Xxxx Companies shall cause Xxxxxx X. Xxxx to deliver to the Banks,
simultaneously with the Xxxx Companies' delivery to the Banks of their December
31, 1999 financial statements in accordance with Section 5.1(a) of the Credit
Agreement, the personal financial statement of Xxxxxx X. Xxxx as of December 31,
1999, which financial statement shall be prepared in-house and shall not differ
materially from the December 31, 1998 financial statement delivered by Xxxxxx X.
Xxxx to the Banks on the First Amendment Closing Date; provided, however, that
the value of Xx. Xxxx'x interests (but not his percentage interest) in the Xxxx
Companies and their affiliates and subsidiaries may materially change.
On or before January 31, 2000, the Xxxx Companies shall deliver to the
Banks, either (i) a schedule of Notes Receivable, as of no earlier than December
31, 1999, indicating the amount and payor of each such note; or (ii) an
affidavit by a senior officer of the Xxxx Companies stating that all such Notes
Receivable are payable by officers of the Xxxx Companies and that the cumulative
principal balance outstanding with respect to such Notes Receivable does not
exceed $4,000,000.
Failure of the Xxxx Companies to comply with any of the foregoing
provisions shall constitute an immediate Event of Default under the Credit
Agreement without notice or an opportunity to cure.
Unlimited Release by The Xxxx Companies. The Xxxx Companies, individually
and together, jointly and severally, on behalf of themselves, and any person or
entity claiming by or through them (collectively referred to as the
"Releasors"), hereby unconditionally remise, release and forever discharge First
Union (in its capacity as agent and as a Bank) and each of the Banks, and each
of their respective past and present officers, directors, shareholders, agents,
parent corporation, subsidiaries, affiliates, trustees, administrators,
attorneys, predecessors, successors and assigns and the heirs, executors,
administrators, successors and assigns of any such person or entity, as
releasees (collectively referred to as the "Releasees"), of and from any and all
manner of actions, causes of action, suits, debts, dues, accounts, bonds,
covenants, contracts, agreements, promises, warranties, guaranties,
representations, liens, mechanics' liens, judgments, claims, counterclaims,
cross-claims, defenses and/or demands whatsoever, including claims for
contribution and/or indemnity, whether now known or unknown, past or present,
asserted or unasserted, contingent or liquidated, at law or in equity, or
resulting from any assignment, if any (collectively referred to as "Claims"),
which any of Releasors ever had or now have against any of the Releasees, for or
by reason of any cause, matter or thing whatsoever, arising from the beginning
of time to the date of execution of this First Amendment, including, but not
limited to, any and all Claims relating to or arising from the lending
relationship between the First Union and/or the Banks and the Xxxx Companies.
The Xxxx Companies warrant and represent that none of them have assigned,
pledged, hypothecated and/or otherwise divested themselves and/or encumbered all
or any part of the Claims being released hereby and agree to jointly and
severally indemnify and hold harmless any and all of Releasees against whom any
Claim so assigned, pledged, hypothecated, divested and/or encumbered is
asserted.
Agent's Fee. The fee payable to First Union as Agent is hereby increased
from $25,000 annually to $100,000 annually (the "Fee"), payable in quarterly
non-refundable advance
installments. The first quarterly installment of the Fee will be earned on the
First Amendment Closing Date and payable on the earliest of acceleration of any
of the Loans, prepayment of any of the Loans, or June 30, 2000. The second
quarterly installment of the Fee will be earned on April 1, 2000 and payable, to
the extent earned, on the earlier of acceleration of any of the Loans,
prepayment of the any of the Loans, or June 30, 2000. All remaining quarterly
installments of the Fee will be earned and payable, to the extent earned, on the
earlier of acceleration of any of the Loans, prepayment of any of the Loans, or
the first day of each calender quarter.
Riverfront Development Corp./Atlantic Container Line. The Xxxx Companies
have transferred (by loan, dividend or otherwise) certain as yet undetermined
amounts (the foregoing amounts, less any dividends from the Related Parties
(defined herein) to the Xxxx Companies, plus any amounts paid or otherwise
transferred by the Xxxx Companies to third parties for the benefit of the
Related Parties are referred to herein as the "Transferred Funds") to various
subsidiaries and affiliates of the Xxxx Companies which are not borrowers under
the Loan Agreement (the "Related Parties"), including, but not limited to
Riverfront Development Corp. Some or all of the Transferred Funds were used by
the Related Parties to acquire common stock and options to purchase common stock
(the "ACL Stock") in Atlantic Container Lines ("ACL"). The Xxxx Companies hereby
covenant and agree to cooperate with the Banks in determining the precise amount
of the Transferred Funds, which shall be determined by no later than January 31,
2000. In addition, the Xxxx Companies hereby covenant and agree that upon the
sale or sales of the ACL Stock, after the first priority secured lender on the
ACL Stock is paid in full, the Xxxx Companies shall cause the Related Parties
(or their successors and assigns) to pay all net proceeds of such sale or sales
to the Banks to permanently reduce the Second Term Loan. Thereafter, the Xxxx
Companies shall cause the Related Parties (or their successors and assigns) to
pay the proceeds from the ACL Stock sales to the Xxxx Companies to the extent of
the Transferred Funds; provided, however, that the Related Parties shall be
entitled to a $10,000,000 credit toward the repayment of the Transferred Funds
upon payment in full of the Second Term Loan. In any event, all Transferred
Funds shall be repaid to the Xxxx Companies on or before June 30, 2000. Failure
of the Xxxx Companies to cause RFD to comply with the foregoing shall constitute
an immediate Event of Default under the Credit Agreement without notice or an
opportunity to cure.
Acknowledgment of Obligations. The Xxxx Companies acknowledge and agree
that as of January 1, 2000, the Xxxx Companies are indebted under the Credit
Agreement as follows (in addition to all fees, costs, and other amounts
recoverable thereunder), all without offset, counterclaim, or defense of any
kind:
Loan Principal Interest
---- --------- --------
Revolving Loans
(including Letters of Credit) $48,825,000.00 $338,524.31
Term Loans $17,250,000.00 $137,401.04
-------------- -----------
Total $66,075,000.00 $475,925.35
============== ===========
Miscellaneous.
Costs and Expenses. Whether or not the transactions contemplated by this
First Amendment and the other documents to be executed in connection herewith
are fully consummated, the Xxxx Companies shall promptly pay (or reimburse, as
First Union and the Banks may elect) all reasonable costs and expenses which
First Union and the Banks have incurred or may hereafter incur in connection
with the reproduction, interpretation, and enforcement of this First Amendment,
the collection of all amounts due hereunder and thereunder, and any amendment,
modification, consent or waiver which may be hereafter requested by any Xxxx
Company or otherwise required. Such reasonable costs and expenses shall include,
without limitation, the reasonable fees and disbursements of counsel to First
Union and the Banks, searches of public records, costs of filing and recording
documents with public offices, and similar costs and expenses incurred by First
Union and the Banks. The Xxxx Companies reimbursement obligations under this
Section shall be joint and several and shall survive any termination of the
Credit Agreement and this First Amendment.
Ratification and Confirmation. Except as expressly amended hereby, the
Credit Agreement and the other Loan Documents and all the other documents
executed in connection therewith remain in full force and effect, and the Xxxx
Companies, First Union and the Banks hereby ratify and confirm their rights,
duties and obligations under the Credit Agreement and the Loan Documents, as
amended hereby, including, without limitation, any confession of judgment
provisions contained therein. All Obligations presently or hereafter outstanding
under the Loan Documents shall continue to be secured by the Collateral and as
set forth therein, and this First Amendment does not constitute a novation of
the Loans. In the event and to the extent of any conflict between the provisions
of this First Amendment or the documents executed in connection with this First
Amendment and the provisions of the Loan Documents, the provisions of this First
Amendment and the documents executed in connection with this First Amendment
with respect thereto shall govern.
No Waiver. No failure or delay on the part of First Union or the Banks in
the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or remedy preclude
any other or further exercise thereof, or the exercise of any other right, power
or remedy.
Headings. The headings and underscoring of articles, sections and clauses
have been included herein for convenience only and shall not be considered in
interpreting this First Amendment.
Integration. This First Amendment and the documents referred to,
comprising or relating to this First Amendment constitute the sole agreement of
the parties with respect to the subject matter hereof and thereof and supersede
all oral negotiations and prior writings with respect to the subject matter
hereof and thereof.
Further Actions. First Union, the Banks and the Xxxx Companies agree to
take such further action to execute and deliver to each other such additional
agreements,
instruments and documents as may reasonably be required to carry out
the purposes of this First Amendment.
Governing Law. This First Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
Amendment and Waiver. No amendment of this First Amendment, and no
waiver, discharge or termination of any one or more of the provisions hereof,
shall be effective unless set forth in writing and signed by all of the parties
hereto.
Successors and Assigns. This First Amendment (i) shall be binding upon
First Union, the Banks and the Xxxx Companies, and upon their respective
nominees, successors and assigns, and (ii) shall inure to the benefit of First
Union, the Banks and the Xxxx Companies, and to their respective nominees,
successors and assigns, provided that the parties may assign their rights
hereunder or any interest herein only to the extent such rights and interests
may be assigned in accordance with the terms of the Credit Agreement
Severability of Provisions. Any provision of this First Amendment that is
held to be inoperative, unenforceable, void or invalid in any jurisdiction
shall, as to that jurisdiction, be ineffective, unenforceable, void or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of that provision in any other
jurisdiction, and to this end the provisions of this First Amendment are
declared to be severable.
No Third-Party Beneficiaries. Notwithstanding anything to the contrary
contained herein, no provision of this First Amendment or any other document
executed in connection herewith is intended to benefit any party other than the
signatories hereto nor shall any such provision be enforceable by any other
party.
Counterparts. This First Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute one and the same First Amendment.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, and agreeing to be legally bound hereby, the
undersigned have caused this First Amendment to Amended and Restated Credit
Agreement to be executed by their duly authorized officers on the date and year
first written.
THE XXXX GROUP, INC.
XXXX CARGO SYSTEMS, INC.
XXXX HAULING AND WAREHOUSING SYSTEM, INC.
XXXXXX MARINE SERVICES, INC.
NPR HOLDING CORPORATION, INC.
NPR, INC.
NPR-NAVIERAS RECEIVABLES, INC.
NPR S.A., INC.
SAN XXXX INTERNATIONAL TERMINALS, INC.
S.J.I.T., INC.
WILMINGTON STEVEDORES, INC.
By: _______________________
Name:
Title:
FIRST UNION NATIONAL BANK, SUMMIT BANK
for itself and as agent
By: _______________________ By: _____________________
Name: Name:
Title: Title:
WILMINGTON TRUST OF PENNSYLVANIA MBC LEASING CORP.
By: _______________________ By: _____________________
Name: Name:
Title: Title:
SCHEDULE "A"
SCHEDULE OF EXISTING DEFAULTS
Violation of Section 6.10 of Credit Agreement as a result of certain
overdraft obligations of the Xxxx Companies to First Union.
Violation of Section 7.2 as of September 30, 1999 and December 31, 1999.
Violation of Section 3.6 as a result of the Xxxx Companies failure to
advise the Banks of the Events of Default set forth above.
Violation of Sections 6.05, 6.07 or 6.09 of the Credit Agreement as a
result of any loans to or investments in Riverfront Development Corporation.
