Exhibit 10.84
AMENDMENT NO. 1
TO
LOAN AGREEMENT
AMENDMENT NO. 1 dated as of December 20, 1995 ("Amendment No. 1") to
the Loan Agreement dated as of May 25, 1995 (the "Loan Agreement"), among
READING & XXXXX OFFSHORE, LIMITED, an Oklahoma corporation (the
"Borrower"), READING & XXXXX CORPORATION, a Delaware corporation (the
"Guarantor") and THE CIT GROUP/EQUIPMENT FINANCING, INC., a New York
corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement, the Lender made available
to the Borrower a loan of up to USD 25,000,000 (the "Loan"), as evidenced
by the secured promissory note of the Borrower dated May 25, 1995 (the
"Note"); and
WHEREAS, the Lender has agreed to make an additional USD 5,000,000
available to the Borrower subject to such additional amount being governed
by the terms and conditions of the Loan Agreement and evidenced by the
Note;
NOW THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree to amend the Loan Agreement as
follows:
1. The Definitions of the Loan Agreement are hereby amended as
follows:
(a) The definition of "Loan Documents" is hereby amended to read
as follows:
"Loan Documents" means this Agreement, the Mortgage, Guaranty,
the Note, and the Amendment Documents.
(b) The following new definitions are hereby added to the
Definitions of the Loan Agreement:
"Amendment Date" means the date on which the conditions
precedent contained in Section 4 of Amendment No. 1 are
fulfilled and the modifications to the Loan Agreement
contemplated by Amendment No. 1 become effective.
"Amendment Documents" means Amendment Xx. 0, Xxxxxxxxxxx Xx.
0, the Guaranty Amendment, and the Mortgage Amendment.
"Endorsement No. 1" means the Endorsement No. 1 to the Note,
substantially in the form of Exhibit A attached hereto.
"Guaranty Amendment" means Amendment No. 1 to the Guaranty,
substantially in the form of Exhibit B attached hereto.
"Mortgage Amendment" means Amendment No. 2 to the First
Preferred Fleet Mortgage on the Vessels, in form and substance
satisfactory to the Lender.
2. Amount. Section 1.01 of the Loan Agreement is hereby amended by
deleting the figure "USD 25,000,000" in the last line of such section and
replacing it with the figure "USD 30,000,000."
3. Revolving Loan Availability Period. Section 1.02(b) of the Loan
Agreement is hereby amended to read as follows:
"(b) From and after the Amendment Date until the Term Loan
Conversion Date, the Borrower shall maintain an average daily
outstanding principal amount of the Loan of no less than USD
10,000,000 and there shall be no more than USD 25,000,000
outstanding principal amount of the Loan on the Term Loan
Conversion Date."
4. Conditions Precedent.
4.1 Documents Required as Conditions Precedent to Amendment No. 1.
The effectiveness of the modifications to the Loan Agreement contemplated
by this Amendment No. 1 are subject to the condition precedent that the
Lender shall have received at or prior to the Amendment Date all of the
following, each dated on or before the Amendment Date and each in form and
substance satisfactory to the Lender and its counsel:
(a) Each of the Amendment Documents shall have been duly
authorized and executed with original counterparts thereof delivered to
the Lender.
(b) The Borrower and the Guarantor shall have delivered to the
Lender evidence of good standing, certified copies of their Certificates
of Incorporation, certificates of incumbency and duly certified
resolutions of their respective Boards of Directors and all such other
corporate documentation authorizing each of them to enter into the
transactions contemplated by Amendment No. 1.
(c) The Lender shall have received opinions from counsel to the
Borrower and the Guarantor, as the case may be, and an opinion of its
special counsel, Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P., each in form and
substance satisfactory to the Lender.
(d) The representations and warranties contained in Section 5 of
this Amendment No. 1 and in each other Amendment Document shall be true on
the Amendment Date with the same effect as though such representations and
warranties had been made on and as of such date, and no Event of Default
specified in Article IV, of the Loan Agreement and no event which, with
the lapse of time or the notice and lapse of time specified in Article IV
of the Loan Agreement, would become such an Event of Default, shall have
occurred and be continuing.
(e) All orders, consents, approvals, licenses, authorizations and
validations of, and filings, recordings and registrations with and
exemptions by any Governmental Agency or any Person (other than any
routine filings which may be required after the date hereof with
appropriate governmental authorities in connection with the operation of
the Vessels) required to (i) authorize the execution, delivery and
performance by the Borrower and the Guarantor of the Amendment Documents
to which they are parties or (ii) prevent the execution, delivery and
performance by the Borrower and the Guarantor of the Amendment Documents
to which they are parties from resulting in a breach of any of the terms
or conditions of, or resulting in the imposition of any lien, charge or
encumbrance upon any properties of the Borrower and the Guarantor pursuant
to, or constituting a default (with due notice or lapse of time or both),
if such breach, imposition or default would result in a materially adverse
change in the financial position of the Borrower and the Guarantor, or
resulting in an occurrence of any event for which any holder or holders of
Indebtedness may declare the same due and payable under, any indenture,
agreement, order, judgment or instrument under which the Borrower and the
Guarantor are a party (other than the Mortgagee or the Assignments) or to
the Borrower's knowledge after due inquiry by which any of the Borrower or
the Guarantor or their property may be bound or affected, or under the
Certificates of Incorporation or Bylaws of the Borrower or the Guarantor,
shall have been obtained or made.
(f) Evidence of the payment of the Amendment Fee referred to in
Section 6(a) below.
(g) Evidence of the successful completion of the GATX sale and
leaseback and the CBK loan transactions.
4.2 Waiver of Conditions Precedent. All of the conditions
precedent contained in this Section 4 are for the sole benefit of the
Lender and the Lender may waive any of them in its absolute discretion,
and on such conditions as it deems proper.
5. Representations of the Borrower. The Borrower represents and
warrants that:
(a) The Borrower is a corporation, duly organized and validly
existing in good standing under the laws of the State of Oklahoma, and has
the requisite power and authority (i) to carry on its business as
presently conducted, (ii) to enter into and perform its obligations under
each Amendment Document to which it is a party, and (iii) to borrower
moneys.
(b) The execution, delivery and performance by the Borrower of
each Amendment Document to which it is a party, and any other instrument
or agreement provided for by this Amendment No. 1 to which the Borrower is
a party, have been duly authorized by all necessary corporate action, do
not require stockholder approval other than such as has been duly obtained
or given, do not or will not contravene any of the terms of its Articles
of Incorporation or Bylaws, and will not violate any provision of law or
of any order of any court or governmental agency or constitute (with or
without notice or lapse of time or both) a default under, or result
(except as contemplated by this Amendment No. 1) in the creation of any
security interests, lien, charge or encumbrance upon any of its properties
or assets pursuant to, any agreement, indenture or other instrument to
which it is a party or by which it may be bound; this Amendment No. 1 and
each Amendment Document to which it is a party has been duly executed and
delivered by the Borrower and constitutes its legal, valid and binding
agreement or instrument, enforceable in accordance with the respective
terms thereof. The enforceability of this Amendment No. 1, however, is
subject to all applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting the rights of creditors and to
general equity principles.
(c) There are no suits or proceedings pending or to its knowledge
threatened against or affecting the Borrower which if adversely determined
would have a material adverse effect upon its financial condition,
operations or business.
(d) The registered office of the Borrower is c/o The Xxxxxxxx-Xxxx
Corporation System, Oklahoma, Inc., 000 X.X. 00xx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx 00000-0000. The principal place of business of the Borrower and
the place where all records relating to the transactions contemplated
hereby, including records relating to the chartering and operations of the
Vessels are kept is 000 Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
(e) Other than such as have been obtained, no license, consent or
approval of any Governmental Agency or other regulatory authority is
required for the execution, delivery or performance of this Amendment No.
1 or any other Amendment Document or any instrument contemplated herein or
therein. The Borrower is the holder of all certificates and
authorizations of governmental authorities required by law to enable it to
engage in the business transacted by it.
6. Fees and Expenses.
(a) Fees. The Borrower agrees to pay the Lender an
Amendment Fee of USD 25,000.00 payable on the Amendment Date.
(b) Expenses. The Borrower agrees to promptly, whether or
not the modifications to the Loan Agreement contemplated by this Amendment
No. 1 become effective, (x) reimburse the Lender for all fees and
disbursements of external counsel to the Lender and all reasonable out of
pocket fees and disbursements of the Lender incurred in connection with
the preparation, execution and delivery of this Amendment No. 1 and all
other documents referred to herein, and all amendments or waivers to or
termination of this Amendment No. 1 or any agreement referred to herein;
and (y) reimburse the Lender for all fees and disbursements of internal
and external counsel to the Lender and all reasonable out of pocket fees,
disbursements and travel-related expenses of the Lender incurred in
connection with the protection of the rights of the Lender under this
Amendment No. 1 and all other documents referred to herein, whether by
judicial proceedings or otherwise. The obligations of the Borrower under
this Section 6 shall survive payment of the Loan.
7. Wherever and in each such place the term "Loan Agreement") is
used throughout the Loan Agreement, such term shall be read to mean the
Loan Agreement as amended by this Amendment No. 1.
8. Except as specifically amended by this Amendment No. 1, all of
the terms and provisions of the Loan Agreement shall remain in full force
and effect.
9. All capitalized terms used herein but not defined herein shall
have the meaning given to them in the Loan Agreement.
10. THIS AMENDMENT NO. 1 TO LOAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment No. 1 on the date first written above.
READING & XXXXX CORPORATION
By:
Name:
Title:
READING & XXXXX OFFSHORE, LIMITED
By:
Name:
Title:
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By:
Name:
Title:
