SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Second Amendment") is entered into as of July 14, 2000 among THE XXXX GROUP,
INC., XXXX CARGO SYSTEMS, INC., XXXX HAULING AND WAREHOUSING SYSTEM, INC.,
XXXXXX MARINE SERVICES, INC., NPR HOLDING CORPORATION, NPR, INC., NPR-NAVIERAS
RECEIVABLES, INC., NPR S.A., INC., SAN XXXX INTERNATIONAL TERMINALS, INC.,
NEW-PORT STEVEDORES, INC., f/k/a S.J.I.T., INC. and WILMINGTON STEVEDORES, INC.
(together, sometimes referred to herein as the "Xxxx Companies" and
individually, as a "Xxxx Company"), FIRST UNION NATIONAL BANK, SUMMIT BANK,
WILMINGTON TRUST OF PENNSYLVANIA and MBC LEASING CORP. (collectively the "Banks"
and, individually, a "Bank") and FIRST UNION NATIONAL BANK, as agent for the
Banks ("First Union").
BACKGROUND
A. The Xxxx Companies, the Banks and First Union are parties to an
Amended and Restated Credit Agreement dated as of February 25, 1999, as amended
by a First Amendment to Amended and Restated Credit Agreement dated January 21,
2000 (as amended, 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.
B. The Events of Default set forth on Schedule "A" hereto (the
"Existing Defaults") have occurred and are continuing. The Xxxx Companies have
requested that the Banks waive the Existing Defaults and amend the Loan
Documents to extend the maturity date of the Revolving Loans, the Term Loan and
the Second Term Loan.
C. The Bank has agreed to the Xxxx Companies' request subject to the
terms and conditions contained 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:
A. Acknowledgments
1. Acknowledgment of Obligations. The Xxxx Companies acknowledge and
agree that as of July 11, 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 $47,975,000.00 $118,586.81
(including Letters of Credit)
Term Loans 17,250,000.00 54,026.04
Second Term Loan 10,000,000.00 32,847.22
-------------- -----------
Total 75,225,000.00 205,460.07
2. Acknowledgment of Collateral. (A) The Loan Documents are valid
and enforceable against, and all of the terms and conditions of the Loan
Documents are binding on, the Xxxx Companies; and (B) the liens and security
interests granted to the Banks pursuant to the Loan Documents are valid, legal,
binding, properly recorded or filed and perfected liens and security interests.
3. Events of Default. The Existing Defaults have occurred. The
Existing Defaults are material and, absent this Second Amendment, the Banks
would be entitled to accelerate all of the Xxxx Companies' obligations to the
Banks and exercise their rights and remedies under the Loan Documents and
applicable law.
4. Maximum Availability under Line of Credit. Upon closing of the
Second Amendment, availability under the line of credit will be limited to
$47,975,000, less the permanent reductions required at closing. Availability
under the Line of Credit also will be permanently reduced by all permanent
reduction payments required herein or under the Loan Documents.
B. Amendments to Credit Agreement
1. All amendments to the Credit Agreement and waivers of Events of
Default contained herein are deemed effective as of June 30, 2000.
2. The term "Base Rate Margin" set forth in Section 1.1 of the
Credit Agreement is amended and restated as one and one-quarter percent (1.25%).
3. Section 1.1 of the Credit Agreement is supplemented by adding the
following definitions thereto:
"Additional Guarantors" shall mean Borinquen Maintenance, Inc., Xxxxxx
Xxxxx Ice, Inc., Oregon Avenue Enterprises, Incorporated, Xxxxxxxx Avenue
Warehousing Corp., Refrigerated Distribution Center, Inc., Dockside
International Fish Co., Inc., Refrigerated Enterprises, Inc., C.R.T., Inc., X.X.
Xxxxxxxx & Co., Inc., and 000 Xxxxxxxx Xxx., Inc.
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"Cost Reduction Plan" shall have the meaning set forth in Section
5.1(j).
"Xxxx-Related Parties" shall mean the Borrowers, the Additional
Guarantors and, whether or not Borrowers or Additional Guarantors, Riverfront
Development Corporation, SLS Services, Inc. d/b/a Xxxx Oversight and Logistics
Technologies, Delaware Avenue Enterprises, Astro Holdings, Gloucester Marine
Terminal, Inc., Gloucester Refrigerated Warehouse, Inc., Trans Ocean Maritime
Services, Inc., Xxxxxx Xxxxx Ice, Oregon Avenue, Xxxxxxxx Avenue, Xxxxxxxx
Whse., Refrig. Dist., Dockside Int'l, Refrig. Enter., CRT and XX Xxxxxxxx.
"Individual Guarantor" shall mean Xxxxxx X. Xxxx, Xx.
"Minimum Payment" shall have the meaning set forth in Section C.4.a. of
the Second Amendment.
"Net ACL Proceeds" shall have the meaning set forth in Section C.4.a.
of the Second Amendment.
"Projections" shall mean the cash flow projections through June 30,
2001 delivered by the Xxxx Companies to the Banks on the Second Amendment
Closing Date.
"Second Amendment" shall mean that certain Second Amendment to Amended
and Restated Credit Agreement, dated the Second Amendment Closing Date, among
the Xxxx Companies, First Union and the Banks.
"Second Amendment Closing Date" shall mean July 14, 2000.
4. The first sentence of Section 2.1(d) of the Credit Agreement is
amended and restated in its entirety to read as follows:
(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 any time 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, 2001.
5. 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
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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) June
30, 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.
6. The date "June 30, 2000" referenced in Section 2.2(b) of the
Credit Agreement shall be replaced with the date "June 30, 2001".
7. The last sentence of Section 2.2(c) of the Credit Agreement is
amended and restated in its entirety to read as follows: "The Second Term Note
shall be payable on June 30, 2001."
8. Section 2.6(a)(iii) is amended and restated to read as follows:
(iii) The Xxxx Companies shall permanently reduce the
Obligations in accordance with Sections C.1., C.2., C.3., C.4.
and C.8. of the Second Amendment.
9. Section 2.7(c) of the Credit Agreement is amended and restated in
its entirety to read as follows:
(c) Sale of Loss of Vessel. In the event any Vessel constituting
part of the Collateral is sold or otherwise disposed of or is a
total loss or constructive total loss for any reason, the
proceeds of the sale or other disposition or the insurance
proceeds, as applicable, shall be used promptly upon receipt
thereof to prepay the Obligations on a pro-rata basis except to
the extent proceeds of insurance may be used otherwise as
provided in the applicable First Preferred Ship Mortgage.
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10. 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 in accordance with Section C.8. of
the Second Amendment to permanently prepay the Obligations on a
pro-rata basis.
11. 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 to the Obligations on a pro-rata basis."
12. Section 2.7(f) of the Credit Agreement is amended and restated
in its entirety to read as follows:
(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, provided that all other Obligations
are reduced on a pro-rata basis.
13. Section 5.1 of the Credit Agreement is hereby supplemented by
adding the following subsections:
(i) On or before August 14, 2000, a cost-reduction plan (the "Cost
Reduction Plan") prepared by the Xxxx Companies using their
reasonable best efforts to prepare a plan that in their best
judgment will permit the most efficient use of their facilities
while achieving optimum cost reduction, and approved by the Xxxx
Companies' financial advisor, which is reasonably satisfactory
to the Banks. Such plan shall include, among other things, an
entity-by-entity analysis of cost-reduction measures, with
projected implementation dates and anticipated cash flow savings
and a designated individual to implement the proposed measures.
(j) On a monthly basis, on or before the twentieth day of each
month: (a) commencing September 20, 2000, a status report on the
Cost Reduction Plan, which is approved by the Xxxx Companies'
financial advisor and is in form reasonably satisfactory to the
Banks, comparing actual cost reductions with budget cost
reductions to date; (b) commencing August 20, 2000, a cash flow
report, which is approved by the Xxxx Companies' financial
advisor and is in form reasonably satisfactory to the Banks,
comparing actual cash flows to the Projections; (c) commencing
August 20, 2000, a report on the status of the planned asset
liquidations by the Xxxx Companies and the Additional
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Guarantors, which is approved by the Xxxx Companies' financial
advisor and is in form reasonably satisfactory to the Banks; and
(d) commencing on August 20, 2000, a report prepared by the Xxxx
Companies and approved by the Xxxx Companies' financial advisor
setting forth any payments which were required to be reviewed in
accordance with the mechanisms for expenditure control
implemented in accordance with Section C.6. of the Second
Amendment.
(k) On or before November 15, 2000, a Business Plan for calendar
year 2001 prepared by the Xxxx Companies and approved by the
Xxxx Companies' financial advisor, which is reasonably
satisfactory to the Banks.
14. Section 5.3 of the Credit Agreement is amended by inserting the
following at the beginning of such Section: "Excluding any liability related to
withdrawal from Port Xxxxxxxxx as disclosed on Schedule 1,".
15. The first sentence of Section 7.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
Adjusted Net Worth will not at any time be less than the sum of: (i)
the Adjusted Net Worth as of December 31, 2000; plus (ii) fifty
percent (50%) of Adjusted Net Income for each Fiscal Quarter ending
after December 31, 2000 without deduction for any losses.
16. Sections 7.2, 7.3, 7.4 and 7.5 of the Credit Agreement are
deleted in their entirety.
17. Section 8.1(e) of the Credit Agreement is amended and restated
in its entirety to read as follows:
Any Xxxx Company or any Subsidiary of any Xxxx Company shall fail to
pay when due any Indebtedness for Borrowed Money, which singularly
or in the aggregate exceeds $1,000,000, and such failure shall
continue beyond any applicable cure period, or any Xxxx Company or
any Subsidiary of any Xxxx Company shall suffer to exist any default
or event of default in the performance or observence of any
agreement, term, condition or covenant with respect to any agreement
or document relating to Indebtedness for Borrowed money and such
default or event of default results in the termination or suspension
of any commitment (which is equal to or in excess of $1,000,000) to
lend money or causes the declaration of any portion of any
borrowings thereunder to become due and payable prior to the date on
which it would otherwise be due and payable.
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18. Section 8.1(e) of the Credit Agreement is supplemented by adding
the following clause at the end of such Section: ", except with respect to
judgments set forth on Schedule 1 hereto."
19. 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 perfected security interests in substantially all
of the assets of the Xxxx Companies (as such assets are
described in greater detail in the other Loan Documents, the
"Collateral").
20. 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 to permanently
reduce the Obligations on a pro rata basis.
21. Section H of the First Amendment is deleted in its entirety.
22. Schedule 1 to the Credit Agreement is hereby supplemented by
Schedule 1 to this Second Amendment.
C. Additional Covenants. The Xxxx Companies hereby covenant and agree
to do (or to cause to be done) all of the following. Failure of the Xxxx
Companies to comply (or to fail to cause any other party to comply) with the
following covenants shall constitute an immediate Event of Default under the
Credit Agreement.
1. ACL Payments. The Xxxx Companies shall pay the Banks (i)
$2,000,000 at closing; and (ii) from the Net ACL Proceeds the amounts required
on or before the dates set forth in Section C.4.a., below.
2. February 28, 2001 and March 31, 2001 Payments.
a. February 28, 2001 Payment. On or before February 28, 2001,
Xxxx Companies shall pay the Banks a sum equal to the
difference between $17,250,000 and the proceeds (if any)
received by the Xxxx Companies from the Hurricane Georges
insurance claim and previously paid to the Banks in
accordance with Section C.8. of
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this Second Amendment; provided that the maximum amount
required to be paid by the Xxxx Companies under this Section
C.2.a. shall not exceed $2,500,000 if the insurance claim
has not been settled or has been settled for less than
$17,250,000.
b. March 31, 2001 Payment. On or before March 31, 2001, Xxxx
Companies shall pay the Banks a sum equal to the difference
between $17,250,000 and the proceeds (if any) received by
the Xxxx Companies from the Hurricane Georges insurance
claim and previously paid to the Banks in accordance with
Section C.8. of this Second Amendment, less the amount paid
pursuant to Section C.2.a. of this Second Amendment;
provided that the maximum amount required to be paid by the
Xxxx Companies under this Section C.2.b. shall not exceed
$2,500,000 if the insurance claim has not been settled or
has been settled for less than $17,250,000.
3. April 30, 2001 Payment. On or before April 30, 2001, the Xxxx
Companies shall pay the Banks $17,250,000 (less any payments made pursuant to
Section C.2. and/or C.8. of this Second Amendment).
4. ACL Stock Liquidation.
a. The Xxxx Companies and Riverfront hereby agree that all
proceeds received on account of the sale, refinancing or
other liquidation of the ACL Stock (as defined in the First
Amendment), including all dividends related to ACL (net of:
(i) up to 45% of such proceeds to repay loans made to
Riverfront by Finansbanken prior to the Second Amendment
Closing Date; (ii) up to 7% of such proceeds to pay the
reasonable third party brokers' fees and other third party
payable transaction costs associated with the stock
liquidations; and (iii) if the Net ACL Proceeds exceed
$20,000,000 in the aggregate, then the Borrowers and
Riverfront Development Corporation shall be entitled to
maintain in an escrow account to be held by Borrowers'
counsel equal to 25% of any long term capital gains
attributable to Net ACL Proceeds in excess of $20,000,000
(net of any capital loss) and 45% of any ordinary income
attributable to Net ACL Proceeds in excess of $20,000,000,
net of any foreign tax credits to pay reasonably anticipated
capital gains taxes, ordinary income taxes, alternative
minimum taxes, and state taxes of Xxxxxx X. Xxxx, Xx.,
related to the sale or disposition of the ACL Shares, such
funds to be released two days before the filing of his
federal tax return on which such income is reported. If the
escrowed funds exceed the
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actual aggregate tax liability paid in connection with the
Federal and state income tax returns on which the income is
reported, the excess will be released from escrow to the
Banks (the foregoing, hereinafter, the "Net ACL Proceeds").
Of the Net ACL Proceeds, the following amounts (the "Minimum
Payments") shall be paid to the Banks on the dates set forth
below to permanently reduce the Obligations:
Date Minimum Payment
---- ---------------
July 31, 2000 $3,000,000
October 31, 2000 $2,500,000
December 8, 2000 $2,500,000
Such Minimum Payments must be made from the Net ACL
Proceeds, and from no other source.
b. To the extent that ACL stock is liquidated, and subject to
the Minimum Payment requirements set forth above: (i) the
first $3,000,000 of Net ACL Proceeds shall be used to
permanently reduce the Obligations; (ii) the next $8,000,000
of Net ACL Proceeds shall non-permanently reduce the
Revolving Loans, and, absent an Event of Default, will be
available to be readvanced to the Xxxx Companies to pay
expenses consistent with the Cost Reduction Plan and the
Projections; (iii) the next $5,000,000 of Net ACL Proceeds
shall be used to permanently reduce the Obligations; (iv)
the next $4,000,000 of Net ACL Proceeds shall
non-permanently reduce the Revolving Loans, and, absent an
Event of Default, will be available to be readvanced to the
Xxxx Companies to pay expenses consistent with the Cost
Reduction Plan and the Projections; and (v) any remaining
Net ACL Proceeds shall be applied: (x) 50% to permanently
reduce the Obligations; and (y) 50% to non-permanently
reduce the Revolving Loans, and, absent an Event of Default,
will be available to be readvanced to the Xxxx Companies
for: (A) interest payments on the 144A Bonds and IRB Bonds
as and when due; (B) principal payments on the Obligations;
(C) expenses consistent with the Cost Reduction Plan and the
Projections; (D) capital expenditures or other costs or
expenses deemed necessary by the Xxxx Companies in the
operation of their businesses, subject to the prior written
approval (which approval will not be unreasonably withheld)
of such Banks as required under the Credit Agreement. To the
extent, if any, that Minimum Payments are made from Net ACL
Proceeds which, but
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for the Minimum Payment requirements, would have been
available to the Xxxx Companies under (ii), above, the
portion of such Minimum Payments made from clause (ii) Net
ACL Proceeds shall be deemed "prepayments" of the (iii) Net
ACL Proceeds.
By way of example, assume: (1) $3,000,000 of Net ACL
Proceeds are received on July 20, 2000 and paid to the
Banks; (2) $4,500,000 of Net ACL Proceeds are received on
September 15, 2000 and retained by the Xxxx Companies in
accordance with clause (ii), above; (3) on October 31, 2000,
the Xxxx Companies pay the $2,5000,000 Minimum Payment from
the September 15, 2000 proceeds; and (4) on November 15,
2000, the Xxxx Companies receive $10,000,000 of Net ACL
Proceeds.
Pursuant to this Section, on November 15, 2000:
(x) the Xxxx Companies would retain as a non-permanent
reduction, $6,000,000 under clause (ii) [$8,000,000 allowed
under clause (ii) less the $2,000,000 ultimately retained by
the Xxxx Companies from the September 15, 2000 collection],
(y) the Banks would retain $2,500,000 [$5,000,000 to the
Banks under clause (iii) less the $2,500,000 "prepayment"
from the September 15, 2000 payment]; and
(z) the Xxxx Companies would retain $1,500,000 under clause
(iv).
5. Second Amendment Fee. A Second Amendment Fee equal to 1.75% of
the Obligations outstanding on August 1, 2000 shall be earned in full by the
Banks on the Second Amendment Closing Date and shall be payable on the earlier
of January 1, 2001 or the date on which the Xxxx Companies' Gloucester facility
is refinanced or sold.
6. Mechanisms for Expenditure Control. The Xxxx Companies have
advised the Banks that Xxxxxxx X. Xxxxxxx will oversee the Xxxx Companies' cash
management systems on and after the Second Amendment Closing Date, subject to
periodic review and reporting to the Banks to be provided by Zolfo, Xxxxxx &
Company. The Xxxx Companies hereby covenant and agree to continue to maintain
such oversight of their cash management systems, or to implement such other
oversight systems as the Banks shall require. In connection with the foregoing,
the Xxxx Companies and Additional Guarantors shall cause Zolfo, Xxxxxx and the
Xxxx Companies to implement, on of before July 21, 2000, cash management
policies and practices reasonably acceptable to the Banks. Such policies and
practices shall include, without limitation, designation of persons with
check-writing authority, procedures for pre-review and verification of
transactions that are outside the ordinary course of business, and that all
payments made by
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the Xxxx Companies and the Additional Guarantors, including, but not limited to
payments made by the Xxxx Companies and the Additional Guarantors to any
Xxxx-Related Parties are made in accordance with the Cost-Reduction Plan and the
Projections, and analysis and review of the existing bank accounts maintained by
the Xxxx Companies and the Additional Guarantors.
7. Deposit Accounts. All of the Xxxx Companies deposit accounts must
be maintained and be part of the Xxxx Companies' cash management system with
First Union; provided, however, that the Xxxx Companies may continue to utilize
their accounts at Banco Popular for Caribbean collections, and their accounts at
Summit Bank and Wilmington Trust of Pennsylvania to the extent currently
utilized, provided that such institutions execute account and agency agreements
acceptable to the Banks acknowledging the Banks' security interest in the
proceeds maintained at such institutions and waiving their respective set off
rights and liens.
8. Hurricane Georges Insurance Payment. Upon the Xxxx Companies'
receipt of proceeds of the Hurricane Georges insurance payment: (i) the first
$17,250,000 (less any payment made by the Xxxx Companies to the Banks under
Section C.2. of this Second Amendment) shall be paid to the Banks to permanently
reduce the Obligations; (ii) absent an Event of Default, the next $7,000,000 of
Hurricane Georges insurance proceeds will be available to be readvanced to the
Xxxx Companies for: (A) interest payments on the 144A Bonds and IRB Bonds as and
when due; (B) principal payments on the Obligations; (C) expenses consistent
with the Cost Reduction Plan and the Projections; (D) capital expenditures or
other costs or expenses deemed necessary by the Xxxx Companies in the operation
of their businesses, subject to the prior written approval (which approval will
not be unreasonably withheld) of such Banks as required under the Credit
Agreement; and (iii) the remaining Hurricane Georges insurance proceeds shall be
paid to the Banks to permanently reduce the Obligations.
9. Continuing Cooperation. The Xxxx Companies shall, and shall cause
the Additional Guarantors, to provide all information requested by, and
cooperate with: (i) Boston & Associates; (ii) Xxxxxxxx & Xxxxx; (iii) Jacq.
Pierot & Sons; (iv) FTI/Xxxxx, Xxxx & Xxxxx with respect to appraisal of the
Gloucester facility; and (v) all other consultants retained by the Banks or
their counsel, in connection with the work being performed by those entities and
timely pay the fees and costs of such consultants.
10. Collateral Liquidation. Upon the Xxxx Companies' or the
Additional Guarantors' receipt of proceeds of the sale of all other collateral
anticipated to be liquidated in the Projections and the Cost Reduction Plan,
such proceeds shall be available to the Xxxx Companies to pay expenses
consistent with the Cost Reduction Plan and the Projections
D. Waiver of Existing Defaults. The Xxxx Companies have advised the
Banks that the Existing Defaults have occurred and are continuing. 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
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Documents which caused the Existing Defaults) other than the Existing Defaults.
Subsequent to the date of this Second Amendment, Events of Default shall be
deemed to occur under Sections 6.3 and 6.10 of the Credit Agreement only on
account of Guarantees or Indebtedness for Borrowed Money incurred after the
Second Amendment Closing Date.
E. Representations and Warranties. To induce the Banks to enter into
this Second 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 Second Amendment:
1. 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 Second Amendment or any agreement
executed, delivered or performed by the Xxxx Companies have been taken.
2. Each person executing the Second 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.
3. This Second 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.
4. The Xxxx Companies are in compliance in all material respects
with all laws (including all applicable environmental laws), regulations, and
requirements applicable to their businesses and have not received, and have 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 their business
operations or financial condition taken as a whole.
5. The execution, delivery and performance of this Second 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 Second Amendment.
6. Other than the Existing Defaults, 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.
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7. Other than the Existing Defaults, 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.
8. The execution, delivery and performance of this Second 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.
F. Conditions Precedent to Enforceability of Second Amendment. This
Second Amendment shall be deemed effective only after the occurrence of the
following events:
1. The Xxxx Companies' execution and delivery (or causing to be
executed and delivered) to First Union of this Second 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:
a. A Supplemental Security Agreement by the Xxxx Companies;
b. Guaranty Agreements executed by the Additional Guarantors;
c. Security Agreements by the Additional Guarantors;
d. A Mortgage by Xxxx Hauling and Warehousing System, Inc. with
respect to the Gloucester facility;
e. Collateral Assignments of the contracts among Xxxx Oversight
and Astro Holdings, on the one hand, and the Xxxx Companies
and the Additional Guarantors, on the other.
f. The original promissory note by Riverfront to the one or
more of the Xxxx Companies, together with an assignment of
the same in favor of the Banks.
g. Guaranty from the Individual Guarantor;
h. Security Agreements by the Tenants securing the Tenant Note
Receivable, together with an assignment of the same in favor
of the Banks;
i. within fifteen days of the Second Amendment Closing Date,
Agency Agreements from all financial institutions
maintaining
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bank accounts for the Xxxx Companies and the Additional
Guarantors (other than accounts maintained by First Union);
j. within seven days of the Second Amendment Closing Date,
mortgages satisfactory to the Bank encumbering all real
property of the Additional Guarantors;
k. UCC financing statements and/or amendments;
l. the opinion of counsel to the Xxxx Companies, in form and
substance satisfactory to the Banks; and
m. Corporate authorization documentation (good standing
certificates to be delivered within fifteen days of the
Second Amendment Closing Date).
2. 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 Second Amendment (including the fees and expenses of First Union's and
the Banks' counsel and financial advisors) through the date of this Second
Amendment together with all other obligations then payable by the Xxxx Companies
to First Union and the Banks.
3. Payment to the Banks of $2,000,000 to permanently reduce the
Obligations.
4. Revised cash flow projections (the "Projections") through June
30, 2001, prepared by the Xxxx Companies and approved by the Xxxx Companies'
financial advisor, which are reasonably satisfactory to the Banks.
5. On or before July 21, 2000, a letter by Riverfront irrevocably
directing the entity administering Riverfront's VPS account (the
"Administrator") that: (i) the Net ACL Proceeds shall be paid directly by the
Administrator to the Banks and (ii) if any Minimum Payment is not delivered to
the Banks by the payment date required above, the Administrator, together with
Sundal Xxxxxxx (or such other broker as the Banks shall designate), shall be
authorized and shall agree to liquidate immediately, at First Union's direction,
such amount of Riverfront's ACL holdings as shall be necessary for the
securities broker to deliver such Minimum Payment to the Banks. Such irrevocable
direction shall be in form and substance acceptable to the Banks and their
counsel and shall be accompanied by such stock powers, powers of attorney and/or
other documents as the Banks and their counsel shall require to effectuate the
foregoing.
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6. 1997, 1998 and 1999 (if 1999 available) financial statements and
(to the extent filed) tax returns for all Xxxx-Related Parties setting forth
their ownership structure, and their directors and officers. To the extent that
any of the foregoing entities do not prepare financial statements, detailed
trial balances should be provided. To the extent 2000 financial projections are
prepared by such entities, such financial projections should be delivered to the
Banks prior to closing.
7. A listing 1998, 1999 and current year compensation by source and
copies of current personal financial statements (if available) and tax returns
(if filed) for Xxx Xxxx, Sr. Within fifteen days of the Second Amendment Closing
Date, Xxx Xxxx, Jr. and Xxx Xxxx shall meet with First Union and the Banks'
advisor to review the 1998 and 1999 (if 1999 available) tax returns and
financial statements for themselves, Xxxxxxx Xxxx and, if married, their
respective spouses.
To the extent that any of the above-referenced items do not have to be
delivered until after the Second Amendment Closing Date, failure of the Borrower
to deliver (or failure of the Borrower to cause to be delivered) such items by
the respective deadlines set forth above shall constitute an immediate Event of
Default under the Credit Agreement.
G. 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 Second 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.
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H. Miscellaneous.
1. Costs and Expenses. Whether or not the transactions contemplated
by this Second 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 negotiation, documentation, monitoring and enforcement of
this Second 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 and financial advisors 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
Second Amendment.
2. 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 Second Amendment does not
constitute a novation of the Loans. In the event and to the extent of any
conflict between the provisions of this Second Amendment or the documents
executed in connection with this Second Amendment and the provisions of the Loan
Documents, the provisions of this Second Amendment and the documents executed in
connection with this Second Amendment with respect thereto shall govern.
3. 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.
4. 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 Second Amendment.
5. Integration. This Second Amendment and the documents referred to,
comprising or relating to this Second 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.
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6. 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 Second Amendment.
7. Governing Law. This Second Amendment shall be governed and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
8. Amendment and Waiver. No amendment of this Second 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.
9. Successors and Assigns. This Second 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
10. Severability of Provisions. Any provision of this Second
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 Second Amendment are
declared to be severable.
11. No Third-Party Beneficiaries. Notwithstanding anything to the
contrary contained herein, no provision of this Second 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.
12. Pro-Rata Payments. Upon execution of this Second Amendment,
unless otherwise set forth to the contrary in this Second Amendment, all
permanent reductions of the Obligations shall be made pro rata among the
Aggregate Revolving Loan Commitment (including Letters of Credit), the Term Loan
and the Second Term Loan. Upon an Event of Default under the Credit Agreement,
if the Xxxx Companies have made non-permanent paydowns to the Aggregate
Revolving Loan Commitment prior to such Event of Default, First Union, at its
option, may reallocate such payments among the Aggregate Revolving Loan
Commitment, the Term Loan and the Second Term Loan so that all of the
Obligations are reduced on a pro-rata basis, and may recharacterize such
paydowns as permanent paydowns.
13. Counterparts. This Second Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts.
Each such counterpart shall
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be deemed to be an original, but all such counterparts shall together constitute
one and the same Second Amendment.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, and agreeing to be legally bound hereby, the
undersigned have caused this Second 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.
NEW-PORT STEVEDORES, INC.
WILMINGTON STEVEDORES, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name:
Title: Vice President
FIRST UNION NATIONAL BANK, SUMMIT BANK
for itself and as agent
By: /s/ Xxx X. Xxxxxxx By: /s/ X. X. Xxxxxxxxxx
-------------------------------- ---------------------------------
Name: Name:
Title: Senior Vice President Title:
WILMINGTON TRUST OF PENNSYLVANIA MBC LEASING CORP.
By: /s/ Xxxxxxx X'Xxxxxxx By: /s/ W. Xxxxx Xxxxx
-------------------------------- ---------------------------------
Name: Name:
Title: Vice President Title: Senior Vice President
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CONSENTED AS TO SECTIONS C.4.a. and C.4.b.
RIVERFRONT DEVELOPMENT CORP.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name:
Title: Vice President
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SCHEDULE "A"
EXISTING DEFAULTS
1. All Events of Default caused by the following transactions (the
"Transactions"):
a. the restatement of the Borrowers' 1998 consolidated and combined
annual financial statements;
b. the restatement of the Borrowers' 1999 consolidated and combined
quarterly and annual financial statements;
c. transfers of funds and transactions by and among Borrowers and
Delaware Avenue Enterprises, Inc.;
d. transfers of funds from Borrowers to or for the benefit of any Person
which is not a Borrower in connection with or as a result of the
concentration bank account shared with certain non-Borrowers;
e. transfers of funds to Riverfront Development Corporation; and
f. dividends and distributions made by The Xxxx Group, Inc. to Xxxxxx
Xxxx, Sr.
2. Events of Default with respect to the following sections of the Credit
Agreement:
a. Section 3.5 (Financial Statements and Projections);
b. Section 3.10(a) (Compliance with Laws, Etc.: Compliance Generally);
c. Section 3.11 (Solvency);
d. Section 3.16 (Use of Proceeds);
e. Section 3.18 (Disclosure Generally);
f. Section 5.1(a) (Financial Statements and Reports: Annual Statements);
g. Section 5.1(b) (Financial Statements and Reports: Quarterly Statements);
h. Section 5.1(c) (Financial Statements and Reports: Compliance Certificate);
i. Section 5.4 (Compliance with Regulations);
j. Section 5.8 (Notice of Events);
k. Section 5.10 (Generally Accepted Accounting Principles);
l. Section 5.11 (Compliance with Material Contracts);
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m. Section 5.12 (Use of Proceeds);
n. Section 6.3 (Guarantees);
o. Section 6.5 (Acquisitions and Investments);
p. Section 6.6 (Transfer of Assets; Nature of Business);
q. Section 6.7 (Restricted Payments);
r. Section 6.9 (Transactions with Affiliates);
s. Section 6.10 (Indebtedness);
t. Section 7.1 (Minimum Adjusted Net Worth);
u. Section 7.2 (Maximum Adjusted Funded Debt to Adjusted EBITDA);
v. Section 7.3 (Minimum Fixed Charge Coverage Ratio);
w. Section 7.4 (Minimum Interest Coverage);
x. Section 7.5 (Minimum Annualized Adjusted EBITDA); and
y. Section 7.6 (Term Loan Borrowing Base).
Notwithstanding the Banks' agreement to waive the foregoing Events of Default,
such waiver by the Banks shall not constitute a waiver by the Banks of any
claim, which the Banks may be entitled to maintain against the Xxxx Companies,
the Additional Guarantors or any other entities as a result of the foregoing
Events of Default.
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SCHEDULE 1 TO SECOND AMENDMENT
(Supplement to Schedule 1 to Credit Agreement)
NPR and the Company are defendants in a lawsuit filed in May 1999, in the United
States District Court for the District of Puerto Rico (Sea-Land Service, Inc.
Piercrane, Inc. v. NPR (Navieras) Inc. et al., No. 99-1420). The plaintiffs seek
damages in an amount not less than $50,000,000 to compensate them for damages to
their property arising out of defendants' alleged negligence and NPR's breach of
contract.
In their lawsuit, the plaintiffs claim that during Hurricane Georges, NPR's
cranes, two of which are leased from Sea-Land, broke from their securing
arrangements and struck plaintiffs' cranes because defendants failed to properly
prepare for the Hurricane. Furthermore, the plaintiffs claim that since NPR is
obligated, under its lease with Sea-Land for two of the cranes, to indemnify
Sea-Land for all losses incurred by Sea-Land in any way relating to possession
and use of the cranes, NPR's failure to hold Sea-land harmless for the losses it
suffered as a result of the leased cranes striking plaintiffs' cranes,
constitutes a breach of contract under the lease. Although the Company believes
that any liability of NPR and the Company in connection with the lawsuit is
covered by insurance, there can be no assurance in that regard or that the
resolution of this lawsuit will not have a material adverse effect on the
Company's consolidated financial position or results of operations.
NPR is also a defendant in a law suit originally filed in State Court in
Louisiana which was removed at NPR's request to Federal District Court (Board of
commissions of the Port of New Orleans v. NPR, Inc.) Plaintiff seeks to enforce
a Cancellation Agreement by which NPR was allowed to terminate, in 1996, its
terminal lease at the Port of New Orleans in return for payment of rent through
2003 of one half of the amount set on the lease. The total payments sought would
amount to $4 million plus interest. At NPR's request the Federal District Court
judge in New Orleans referred the dispute to the Federal Maritime commission to
determine whether the Cancellation Agreement violated, as claimed by NPR, any
provisions of the Shipping Acts. On March 16, 2000, an Administrative Law judge
ruled that the circumstances under which the Cancellation Agreement was entered
did not give rise to violations of the shipping Acts and remanded the matter to
the Federal District Court for determination of whether the misrepresentation,
as claimed by NPR.
On February 15, 2000, National Union Fire Insurance Company of Pittsburgh,
Pennsylvania filed before a panel of arbitrators in New York a formal claim
$21.9 million against Xxxx Cargo Systems, Inc. ("Xxxx") for sums allegedly due
under a workmen's compensation insurance program in force from February 1, 1987
to December 17, 1996 wherein Xxxx agreed to indemnify National Union for sums
paid out on behalf of Xxxx for workmen's compensation. The Company has posted a
$5.0 million letter of credit as security for National Union in connection with
the insurance program. The Company is analyzing the claim and although the
Company is preparing to defend itself vigorously, there can be no assurance that
resolution of this lawsuit will not have a material adverse effect on the
Company's consolidated financial position or results of operations.
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By order dated July 14, 2000 the Abitral Panel ("Panel") required Xxxx Cargo
Systems, Inc. ("Systems") to provide additional security in the amount of
$6,859,966 in the form of a clean, irrevocable letter of credit to the Claimant
not later than 5:00 p.m. July 20, 2000. Additionally, the order permits Claimant
to draw upon an outstanding letter of credit securing the workers compensation
indemnity agreement, in the amount of $5,000,000, at any time in their sole
discretion.
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