FOURTH AMENDMENT AND CONSENT TO REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT AND CONSENT TO REVOLVING CREDIT
AGREEMENT (this "Amendment") is entered into as of September 1,
1995, 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 LC Issuer and as successor agent to BANK OF
AMERICA ILLINOIS (successor-in-interest to CONTINENTAL BANK), 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.
WITNESSETH:
WHEREAS, the parties hereto have entered into a
Revolving Credit Agreement, dated as of May 10, 1994 as amended
by that certain First Amendment and Waiver to Revolving Credit
Agreement dated as of May 31, 1994, that certain Second Amendment
to Revolving Credit Agreement dated as of February 9, 1995 and
that certain Third Amendment, Waiver and Consent to Revolving
Credit Agreement dated as of May 10, 1995 (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 $42,500,000 for the Company's ongoing
working capital and general corporate needs;
WHEREAS, the Company intends to submit certain bids to
construct (i) an ocean roll on, roll off passenger ferry for the
State of Alaska for a sale price of approximately $150,000,000
(the "Alaskan Ferry Project") and (ii) a Steel Hulled Barracks
Craft, APL-61 Series, for the Naval Sea Systems Command (the "APL
Project");
WHEREAS, in connection with its bid for the Alaskan
Ferry Project, the Company must submit certain assurances in the
form of a bid bond and payment and performance bonds in favor of
the State of Alaska and in connection with its bid for the APL
Project, the Company must submit certain assurances in the form
of a bid and payment and performance bonds in favor of the Naval
Sea Systems Command;
WHEREAS, in connection with the Alaskan Ferry Project,
the Company has arranged with the State of Louisiana through the
Department of Economic Development and the Commission of
Administration, to provide a bid bond in an amount not to exceed
$5,000,000 and payment and performance bonds not to exceed
$33,000,000 each (for an aggregate bonding of $71,000,000 of
which no more than $66,000,000 shall be outstanding at any one
time; all such bonds being hereinafter referred to as the
"Alaskan Ferry Bonds");
WHEREAS, in connection with the APL Project, the
Company has arranged with United States Fidelity and Guaranty
Company to provide a bid bond in an amount not to exceed
$3,000,000, a payment bond in an amount not to exceed $3,000,000
and a performance bond in an amount not to exceed $5,000,000 (for
an aggregate bonding of $11,000,000 of which no more than
$8,000,000 shall be outstanding at any one time; all such bonds
being hereinafter referred to as the "APL Bonds");
WHEREAS, as a condition precedent to providing the
Alaskan Ferry Bonds, the State of Louisiana has required the
Company to secure its reimbursement obligations with respect
thereto with (i) a lien on the vessel to be constructed by the
Company as part of the Alaskan Ferry Project, (ii) the related
construction contract, (iii) all receivables arising therefrom
and (iv) all proceeds and products of the foregoing
(collectively, the "Alaskan Ferry Collateral");
WHEREAS, the Company has requested that the Banks waive
and amend certain provisions of the Existing Agreement to (i)
allow the Company to obtain the Alaskan Ferry Bonds and the APL
Bonds, (ii) secure the Company's reimbursement obligations with
respect to the Alaskan Ferry Bonds with the Alaskan Ferry
Collateral and (iii) permit the Agent to subordinate any lien it
has on the Alaskan Ferry Collateral;
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. Amendments to the Existing Agreement. Subject to
and conditioned upon the fulfillment of each of the conditions
precedent set forth in Section 4 hereof, the Existing Agreement
is hereby amended as follows:
(a) Section 1.1 of the Existing Agreement is hereby
amended to add the following definitions thereto in proper
alphabetical order:
"Alaskan Ferry Bonds" means, collectively, (i) a bid
bond in an amount not to exceed $5,000,000 and (ii) payment
and performance bonds not to exceed $33,000,000 each issued
by the State of Louisiana through the Department of Economic
Development and the Commission of Administration for the
account of the Company in connection with the Alaskan Ferry
Project.
"Alaskan Ferry Collateral" means, collectively, (i) the
vessel to be constructed by the Company as part of the
Alaskan Ferry Project, (ii) the related construction
contract, (iii) all receivables arising therefrom, and (iv)
all proceeds and products of the foregoing, but only to the
extent such proceeds and products do not otherwise
constitute Collateral.
"Alaskan Ferry Liens" means those Liens granted by the
Company on the Alaskan Ferry Collateral to secure the
Company's obligations to the State of Louisiana in
connection with the Alaskan Ferry Bonds.
"Alaskan Ferry Project" means the Company's bid to
construct, and the construction of, an ocean roll on, roll
off passenger ferry for the State of Alaska, which bid is to
be made by the Company during September 1995.
"APL Bonds" means, collectively, (i) a bid bond in an
amount not to exceed $3,000,000, (ii) a payment bond in an
amount not to exceed $3,000,000 and (iii) a performance bond
in an amount not to exceed $5,000,000 each issued by United
States Fidelity and Guaranty Company for the account of the
Company.
"APL Project" means the Company's bid to construct, and
the construction of, a Steel Hulled Barracks Craft, APL-61
Series, for the Naval Sea Systems Command.
(b) Section 1.1 of the Existing Credit Agreement is
hereby further amended to add the following sentence at the end
of the definition of "Contingent Obligation" contained therein:
In no event shall the "Contingent Obligations" of the
Company include its contingent reimbursement obligations to
the State of Louisiana under or with respect to the Alaskan
Ferry Bonds or its contingent reimbursement obligations to
United States Fidelity and Guaranty Company under or with
respect to the APL Bonds.
(c) Section VII of the Existing Agreement is hereby
amended by adding the following new Section 7.23 thereto:
Section 7.23 Commingling of Alaskan Ferry Collateral
with Collateral; Limitation on Alaskan Ferry Bonds;
Limitation on APL Bonds. The Company shall not deposit, nor
shall it permit to be deposited, into any bank or depositary
account in which the Agent has been granted a security
interest or in which any proceeds of and Collateral are
deposited, including, without limitation, the Control
Accounts (as defined in the Security Agreement (Company))
any monies constituting Alaskan Ferry Collateral. At no
time shall the aggregate outstanding amount of the Alaskan
Ferry Bonds exceed $66,000,000. At no time shall the
aggregate outstanding amount of the APL Bonds exceed
$8,000,000.
(d) Section 7.2 of the Existing Agreement is hereby
amended to delete clause (m) thereof in its entirety and to
insert the following therefor:
(m) the MARAD Financing Liens and the Alaskan Ferry
Liens;
2. Consent Relating to Subordination of Liens in the
Alaskan Ferry Collateral. Notwithstanding anything to the
contrary set forth in Section 10.2 of the Existing Agreement,
without any further consent of any Bank or the LC Issuer, the
Agent, upon the request of the Company, shall subordinate its
Lien (if any) on the Alaskan Ferry Collateral in favor of the
State of Louisiana. Any such subordination shall be made
pursuant to an agreement in form and substance satisfactory to
the Majority Banks in their sole discretion.
3. Conditions Precedent to Effectiveness of
Amendments and Consent. The amendments and modifications set
forth in Section 1 hereof and the consents set forth in Sections
2 hereof shall become effective upon, and are expressly
conditioned upon, the fulfillment of each of the following
conditions precedent on or prior to October 1, 1995:
(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 other Banks) from each
of the Subsidiary Guarantors a reaffirmation of the Subsidiary
Guarantee executed by it in the forms 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) Legal Opinion. The Agent shall have received the
favorable opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Xxxxxxx, Louisiana counsel to the Company, addressed to the
Agent, the LC Issuer and the Banks in form and substance
satisfactory to the Agent and its counsel.
(e) Alaskan Ferry Project and APL Project
Documentation. The Agent shall have received copies of all
documentation relating to the Alaskan Ferry Project and the
issuance of the Alaskan Ferry Bonds and the APL Project and the
issuance of the APL Bonds and such documents shall be in form and
substance satisfactory to the Majority Banks as evidenced by
their execution hereof.
(f) 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.
4. 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.
5. 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.
6. 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.
7. Confirmation of Collateral Documents. The Company
hereby (i) 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 (ii) 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.
8. 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.
9. 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.
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
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE BANKS:
BANK OF AMERICA ILLINOIS, successor-
in-interest to CONTINENTAL BANK,
as a Bank and as LC Issuer
By: /s/ W. XXXXXX XXXXXXX
---------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as LC Issuer
By: /s/ W. XXXXXX XXXXXXX
---------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
WHITNEY NATIONAL BANK
By: /s/ XXXXX X. XXXXXXXX, XX.
--------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
FIRST INTERSTATE BANK OF TEXAS,N.A.
By: /s/ XXXXX X. XXXXXXXXX
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FIRST NATIONAL BANK OF COMMERCE
By: /s/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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 Fourth Amendment and Consent to 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
---------------------
Xxxxxx X. Kitchen
Title: Vice President, Secretary &
Treasurer
Dated: September 1, 1995
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 Fourth Amendment and Consent to 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/ X. X. XXXXX
---------------
X. X. Xxxxx
Title: Secretary/Treasurer
Dated: September 1, 1995
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 Fourth Amendment and Consent to 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/ X. X. XXXXX
---------------
X. X. Xxxxx
Title: Secretary/Treasurer
Dated: September 1, 1995
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 Fourth Amendment and Consent to 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/ X. X. XXXXX
---------------
X. X. Xxxxx
Title: Secretary/Treasurer
Dated: September 1, 1995
CONSENT
By Subsidiary Guarantee dated as of February 9, 1995
(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 Fourth Amendment and Consent to 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
---------------------
Xxxxxx X. Kitchen
Title: Vice President & Secretary
Dated: September 1, 1995
By Subsidiary Guarantee dated as of February 9, 1995
(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 Fourth Amendment and Consent to 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 & CFO &
Secretary
By Avondale Properties, Inc.,
a general partner
By /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title: Vice President & CFO &
Secretary
Dated: September 1, 1995
