SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Amendment") is entered into as of April
30, 1997, 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 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.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into an Amended and
Restated Revolving Credit Agreement dated as of January 28, 1997
as amended by that certain First Amendment thereto dated as of
March 14, 1997 (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 $85,000,000
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. Amendment to the Existing Agreement. Subject to and
conditioned upon the fulfillment of each of the conditions
precedent set forth in Section 3 hereof, the Existing Agreement
is hereby amended as follows: Section 6.11 of the Existing
Agreement is hereby amended to delete the terms thereof in their
entirety and to insert the following therefor:
Section 6.11. Delivery of Assignment of Claims
Notices. Except as provided in the next sentence of
this Section 6.11, within 30 days after executing any
contract with any Governmental Authority of the United
States, including, without limitation, the Department
of Navy, providing for aggregate payments to the
Company or any Subsidiary Guarantor of $1,000,000 or
more, the Company shall, and shall cause each
Subsidiary Guarantor party thereto, to assign such
contract to the Agent and deliver a Notice of
Assignment with respect to such contract which has been
sent to the United States government pursuant to the
Assignment of Claims Act of 1940 as amended (31 U.S.C.
3727, 41 U.S.C. 15) and acknowledged by the appropriate
administrative contracting officer, and disbursing
officer, and if applicable, any surety on any bond
applicable to such contract. On or before May 31,
1997, the Company shall assign the LPD-17 Contract to
the Agent and deliver a Notice of Assignment with
respect to the LPD-17 Contract which has been sent to
the United States government pursuant to the Assignment
of Claims Act of 1940 as amended (31 U.S.C. 3727, 41
U.S.C. 15) and acknowledged by the appropriate
administrative contracting officer, and disbursing
officer, and if applicable, any surety on any bond
applicable to the LPD-17 Contract.
2. Conditions Precedent to Effectiveness of Amendments and
Consents. 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:
(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) 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. 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.
4. 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.
5. 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.
6. Confirmation of Collateral Documents. The Company
hereby (a) 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 (b) 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.
7. 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.
8. 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 Pages Follow]
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
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ W. Xxxxxx Xxxxxxx
---------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
THE BANKS:
BANK OF AMERICA ILLINOIS
By: /s/ W. Xxxxxx Xxxxxxx
---------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
WHITNEY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
ABN-AMRO BANK, N.V.
By: /s/
Name:
Title:
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
FIRST NATIONAL BANK OF
COMMERCE
By: /s/ A. Xxxxx Xxxxx
------------------
Name: A. Xxxxx Xxxxx
Title: Banking Officer
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
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 Second Amendment to Amended and Restated 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,
Secretary & Treasurer
Dated as of April 30, 1997.
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 Second Amendment to Amended and Restated 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/ Xxxxx X. Xxxxx
------------------
Title: Secretary & Treasurer
Dated as of April 30, 1997.
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 Second Amendment to Amended and Restated 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/ Xxxxx X. Xxxxx
------------------
Title: Secretary & Treasurer
Dated as of April 30, 1997.
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 Second Amendment to Amended and Restated 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/ Xxxxx X. Xxxxx
------------------
Title: Secretary & Treasurer
Dated as of April 30, 1997.
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 Second Amendment to Amended and Restated 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 &
Secretary
Dated as of April 30, 1997.
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 Second Amendment to Amended and Restated 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, Chief
Financial Officer and
Secretary
By Avondale Properties, Inc.,
a general partner
By: /s/ Xxxxxx X. Kitchen
---------------------
Name: Xxxxxx X. Kitchen
Title: Vice President and
Secretary
Dated as of April 30, 1997.
