LOAN MODIFICATION
BANK OF AMERICA AGREEMENT
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This First Loan Modification Agreement ("First Modification") modifies
the Credit Agreement dated October 25, 2002 ("Agreement"), and the "Revolving
Note," as defined therein, regarding a revolving line of credit in the maximum
principal amount of $50,000,000 (the "Line of Credit"), executed by Xxxxxx
Navigation Company ("Borrower") in favor of Bank of America, N.A. ("Bank").
Terms used in this First Modification and defined in the Agreement shall have
the meaning given to such terms in the Agreement. For mutual consideration, the
Borrower and the Bank agree to amend the Agreement end of the Revolving Note as
follows:
1. Termination Date. Section 1.24 of the Agreement is amended to extend
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the Termination Date to December 31, 2006. The maturity date of the Revolving
Note is extended to December 31, 2006.
2. Commitment Fees. The third sentence of Section 2.4 of the Agreement
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is amended to read as follows: The applicable percentage shall be 0.125% per
annum.
3. Letters of Credit. Section 2.5 of the Agreement is amended to
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provide that all Letters of Credit shall expire no later than January 1, 2007.
4. Letter of Credit Fees. The second sentence of Section 2.6 of the
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Agreement is amended to read as follows: The applicable percentage shall be
0.475% per annum.
5. Net Worth. Section 5.2 of the Agreement is amended to read as
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follows:
5.2 Net Worth. Maintain on a consolidated basis Net Worth,
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measured as of each fiscal quarter end, of not less than the greater of
(a) $250,000,000 or (b) 65% of the prior year audited Net Worth. "Net
Worth" shall be defined in accordance with GAAP.
6. Intercompany Loans. Section 6.8 of the Agreement is amended to read
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as follows:
6.8 Loans. Make any loans, advances or other extensions of
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credit to any Person, including but without limitation any of the
Borrower's executives, officers, directors or shareholders, or to any
related or unrelated entity, except for (a) extensions of credit in the
nature of accounts receivable or notes receivable arising from the sale
or lease of goods or services in the ordinary course of business, (b)
intercompany loans to Alexander & Xxxxxxx, Inc., or its wholly owned
subsidiaries, and (c) other loans not exceeding $10,000,000 in the
aggregate outstanding at any one time.
7. Permissible Investments. Section 6.9 of the Agreement is amended to
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read as follows:
6.9 Permissible Investments. Make any investment outside the
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ordinary course of Borrower's business, except investments authorized
under Borrower's investment resolution June 24, 2004.
8. Revolving Note. Section 1.15 of Exhibit A of the Revolving Note is
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amended to read as follows:
1.15 Offshore Rate Margin shall mean 0.475% per annum.
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9. Representations and Warranties. When the Borrower signs this First
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Modification, the Borrower represents and warrants to the Bank that: (a) there
is no event which is, or with notice or lapse of time or both would be, a
Default under the Agreement except those events, if any, that have been
disclosed in writing to the Bank or waived in writing by the Bank, (b) the
representations and warranties in the Agreement are true as of the date of this
First Modification as if made on the date of this First Modification, (c) this
First Modification does not conflict with any law, agreement, or obligation by
which the Borrower is bound, and (d) this First Modification is within the
Borrower's powers, has been duly authorized, and does not conflict with any of
the Borrower's organizational papers.
10. Conditions. This First Modification will be effective when the Bank
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receives the following items, in form and content acceptable to the Bank:
(a) Evidence that the execution, delivery, and performance by the
Borrower of this First Modification and any instrument or agreement
required under this First Modification have been duly authorized.
(b) Payment by the Borrower of a loan fee in the amount of $25,000
for the Line of Credit.
(c) Payment by the Borrower of all costs, expenses, and attorneys'
fees (including allocated costs for in-house legal services) incurred
by the Bank in connection with this First Modification.
11. Other Terms. Except as specifically amended by this First
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Modification or any prior amendment, all other terms, conditions, and
definitions of the Agreement and the Revolving Note, and all other documents,
instruments, or agreements entered into with regard to the Line of
Credit, shall remain in full force and effect.
12. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND
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AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM
SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO
THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
13. ORAL AGREEMENTS. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
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EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
DATED as of December 15, 2004.
Bank: Borrower:
BANK OF AMERICA, X.X. Xxxxxx Navigation Company
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxxxx X. Xxx
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Title SVP Title SVP & CFO
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By /s/ Xxxxxxx X. Xxxx
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Title Treasurer
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