EXHIBIT 10.30
AMENDMENT TO AGREEMENTS
This AMENDMENT TO AGREEMENTS (this "Amendment"), dated as of May 20, 2005
is among the lending institutions from time to time party to the Loan Agreement
(as defined below) (such financial institutions, together with their respective
successors and assigns, are referred to hereinafter each individually as a
"Lender" and collectively as "Lenders"), BANK OF AMERICA, N.A., as
administrative agent and as collateral agent for the Lenders (in its capacity as
administrative agent and collateral agent, the "Agent"), AMERICAN COMMERCIAL
LINES LLC, a limited liability company formed under the laws of Delaware
(referred to hereinafter as "ACL"), JEFFBOAT LLC, a limited liability company
formed under the laws of Delaware ("Jeffboat"), AMERICAN COMMERCIAL TERMINALS
LLC, a limited liability company formed under the laws of Delaware (referred to
hereinafter as "Terminals"), HOUSTON FLEET LLC, a limited liability company
formed under the laws of Delaware (referred to hereinafter as "Houston"),
AMERICAN COMMERCIAL BARGE LINE LLC, a limited liability company formed under the
laws of Delaware (referred to hereinafter as "ACBL"), and LOUISIANA DOCK COMPANY
LLC, a limited liability company formed under the laws of Delaware (referred to
hereinafter as "Dock"; and together with ACL, Jeffboat, Terminals, ACBL and
Houston, each, individually a "Borrower" and collectively, the "Borrowers") and
each of the other Obligated Parties (as defined in the Loan Agreement) signatory
to this Amendment.
RECITALS
Whereas, the Lenders, the Agent, the Syndication Agent, the
Co-Documentation Agents, the Borrowers and the other Obligated Parties entered
into that certain Amended and Restated Loan Agreement, dated as of February 11,
2005 (as amended, restated, renewed, extended, replaced, supplemented,
substituted or otherwise modified from time to time, the "Loan Agreement"); and
Whereas, the Agent and the Obligated Parties entered into that certain
Amended and Restated Security Agreement, dated as of February 11, 2005 (as
amended, restated, renewed, extended, replaced, supplemented, substituted or
otherwise modified from time to time, the "Security Agreement"); and
Whereas, the Lenders, the Agent, the Borrowers and the other Obligated
Parties have agreed to modify the terms of the Loan Agreement, Security
Agreement and the other Loan Documents as set forth in this Amendment.
Now, therefore, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. DEFINITIONS. Terms used in this Amendment which are capitalized and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Loan Agreement.
2. MODIFICATIONS TO LOAN AGREEMENT. The Loan Agreement is hereby modified
as follows:
(a) Section 1.01 of the Loan Agreement is hereby amended as follows:
(i) The definition of "Equity Issuance" is hereby amended and
restated in its entirety as follows:
""Equity Issuance" shall mean the issuance by any Obligated
Party or any Subsidiary of any Equity Interests of any Obligated
Party or any Subsidiary, as applicable, or the receipt by any
Obligated Party or any Subsidiary of any capital contribution, in
each case, after the Closing Date, other than (a) any such issuance
of Equity Interests to, or receipt of any such capital contribution
from, any Obligated Party or a Subsidiary, (b) any issuance of
Equity Interests by any Foreign Subsidiary to existing stockholders
of such Foreign Subsidiary as a result of a capital call by such
Foreign Subsidiary, (c) any issuance of "Management Incentive New
Shares" pursuant to the "Stock Option Plan" (as defined in the Plan
of Reorganization, and (d) any issuance of Equity Interest by any
Obligated Party or a Subsidiary to the management, officers,
directors or employees of any Obligated Party or Subsidiary pursuant
to a properly established stock incentive plan which allows for the
issuance of stock options, restricted stock, performance shares and
other forms of equity based compensation and any issuance of any
Equity Interest by an Obligated Party or any Subsidiary, as
applicable, upon the exercise of any of the foregoing rights
described in this clause (d)."
(ii) The definition of "Guarantor" is hereby amended and restated in
its entirety as follows:
""Guarantor" means each entity listed on Schedule 1.01, and
each other entity that becomes party to a Guaranty Agreement."
(iii) The definition of "Subsidiary" is hereby amended and restated
in its entirety as follows:
""Subsidiary" means any subsidiary of any Obligated Party,
other than the Obligated Parties themselves."
(b) Section 6.01(f) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
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"(f) Indebtedness in respect of secured purchase money
financing (including Capital Lease Obligations other than Capital
Lease Obligations in respect of chartered barges and towboats) in an
aggregate amount not to exceed $5,000,000, to the extent permitted
by Section 6.02(a) hereof;"
(c) Section 6.04(b) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(b) Neither the Obligated Parties nor any Subsidiary shall
engage in any Asset Sale otherwise permitted under paragraph (a)
above unless (i) such Asset Sale is for consideration at least 85%
of which is cash, (ii) such consideration is at least equal to the
fair market value (as determined in good faith by the applicable
Obligated Party's board of directors or analogous body) of the
assets being sold, transferred, leased or disposed of, and (iii) the
fair market value (as determined in good faith by the applicable
Obligated Party's board of directors or analogous body) of all
assets sold, transferred, leased or disposed of pursuant to this
paragraph (b) shall not exceed (A) $50,000,000 in the aggregate or
(B) $10,000,000 in any fiscal year; provided, that the provisions of
this Section 6.04(b) shall not apply to Asset Sales permitted by
clauses (A) and (B) of Section 6.04(a)(iii) and the limitations set
forth in Section 6.04(b)(iii) shall not apply to the sale by any
Obligated Party of its Equity Interests in any non-Domestic
Subsidiaries or any Asset Sales by any non-Domestic Subsidiary."
(d) Section 6.05(a) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(a) Declare or pay, directly or indirectly, any dividend or
make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with
respect to any of its Equity Interests or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit
any Subsidiary to purchase or acquire) any of its Equity Interest or
set aside any amount for any such purpose; provided, however, that
from and after the earlier of (x) the date of consummation of an
initial public offering of the Equity Interests of any Obligated
Party or (y) the first Anniversary Date, any Borrower or Guarantor
may declare and pay dividends or make other distributions ratably to
its shareholders provided that as of the date that any such dividend
or distribution is declared and paid (i) no Default or Event of
Default exists or is continuing or would exist after giving effect
to any such dividend or distribution, (ii) Agent and Lenders have
received the financial statements required to be delivered under
Section 5.04(a) (the "Audited Financial Statements") for the
immediately preceding
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fiscal year, and (iii) for the thirty (30) consecutive day period
immediately prior to such date and after giving effect to any such
dividend or distribution, Borrowers have Unused Availability of not
less than (A) if such dividend or distribution occurs prior to the
second Anniversary Date, $75,000,000; and (B) if such dividend or
distribution Occurs on or after the second Anniversary Date,
$50,000,000. In addition to and not in limitation of the foregoing,
so long as no Default or Event of Default exists and is continuing,
in the event that Non-U.S. Persons (as defined below) acquire
Equity Interests in any Obligated Party equal to or in excess of
twenty-five (25%) percent, in the aggregate, of such Obligated
Party's issued and outstanding Equity Interests, such Obligated
Party shall be permitted to repurchase all or some of the shares
acquired in the most recent trade(s) by Non-U.S. Persons until such
time as, after giving effect to such repurchase, such Non-U.S.
Persons' Equity Interests in such Obligated Party is between 24% and
25%, in the aggregate, of the Equity Interests of such Obligated
Party. As used herein, "Non-U.S. Persons" shall mean any Person that
is not a "United States person" as defined under Section 770l(a)(30)
of the Code."
(e) Section 7.01(m) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(m) [Intentionally omitted]; or"
3. MODIFICATIONS TO SECURITY AGREEMENT. The Security Agreement is hereby
modified as follows:
(a) Section 4.04(b) of the Security Agreement is hereby amended and
restated in its entirety as follows:
"(b) The Grantors shall use commercially reasonable efforts to
cause to be delivered to Collateral Agent, on or before the one
hundred eightieth (180th) day following the Closing Date, with
respect to each facility at which Collateral is located which is
leased by the Grantors, landlord lien waivers in form and substance
reasonably satisfactory to Collateral Agent."
(b) The fourth sentence of Section 4.13(a) of the Security Agreement
is hereby amended and restated in its entirety as follows:
"Within one hundred fifty (150) days from the date hereof,
Grantors shall establish a lock-box service for collections of
Accounts at a Clearing Bank acceptable to Collateral Agent and
subject to a Deposit Account Control Agreement and other
documentation acceptable to Collateral Agent."
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4. VENEZUELA DIVESTITURE. Notwithstanding anything to the contrary
contained in the Loan Agreement or any other Loan Document, the Obligated
Parties may sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) the Equity Interests, assets or business operations
of ACBL de Venezuela C.A. (a "Venezuela Divestiture"); provided, that (a) as of
the date of such Venezuela Divestiture, no Default or Event of Default exists or
is continuing or would exist after giving effect to any such Venezuela
Divestiture and (b) the terms and conditions of any such Venezuela Divestiture
are reasonably acceptable to Agent.
5. ACKNOWLEDGMENTS. Each Obligated Party acknowledges and represents that:
(a) after giving effect to this Amendment, no Default or Event of
Default under the Loan Documents has occurred;
(b) no default by the Lenders or the Agent in the performance of
their respective duties under the Loan Agreement, the Security Agreement or the
other Loan Documents has occurred;
(c) after giving effect to this Amendment, all representations and
warranties contained herein and in the Loan Documents are true and correct as of
this date;
(d) all necessary actions and proceedings required by the Loan
Agreement in connection with this Amendment, applicable law or regulation and
the transactions contemplated thereby have been duly and validly taken in
accordance with the terms thereof, and all required consents thereto under any
agreement, document or instrument to which the Obligated Parties are a party,
and all applicable consents or approvals of governmental authorities, have been
obtained; and
(e) this Amendment is a modification of an existing obligation and
is not a novation.
6. CONTINUED EFFECTIVENESS OF LOAN DOCUMENTS. Each of the Obligated
Parties hereby (a) confirms and agrees that each Loan Document to which it is a
party is, and shall continue to be, in full force and effect without any
defense, claim, counterclaim, right or claim of set-off and is hereby ratified
and confirmed in all respects except that on and after the Amendment Effective
Date all references in any such Loan Document to "the Loan Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Amendment, and (b)
confirms and agrees that to the extent that any such Loan Document purports to
assign or pledge to Agent, or to grant to Agent a security interest in or lien
on, any collateral as security for the Obligations of the Obligated Parties from
time to time existing in respect of the Loan Agreement and the Loan Documents,
such pledge, assignment and/or grant of the security interest or lien is hereby
ratified and confirmed in all respects.
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7. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective only
upon satisfaction in full of the following conditions precedent (the first date
upon which all such conditions have been satisfied being herein called the
"Amendment Effective Date"):
(a) After giving effect to this Amendment, the representations and
warranties contained in this Amendment and in Article III of the Loan Agreement
and each other Loan Document shall be correct on and as of the Amendment
Effective Date as though made on and as of such date, except to the extent any
such representation or warranty is made as of a specified date, in which case
such representation or warranty shall have been true and correct as of such
date; after giving effect to this Amendment, no Event of Default shall have
occurred and be continuing on the Amendment Effective Date or result from this
Amendment becoming effective in accordance with its terms.
(b) The Agent shall have received counterparts of this Amendment
which bear the signatures of the Borrowers, the Guarantors and the Agent on
behalf of the Majority Lenders
8. MISCELLANEOUS.
(a) The validity, interpretation and enforcement of this Amendment
in any dispute arising out of the relationship between the parties hereto,
whether in contract, tort, equity or otherwise shall be governed by the internal
laws of the State of New York, without reference to the conflicts of law
principles thereof.
(b) This Amendment and the Loan Documents constitute the sole
agreement of the parties with respect to the subject matter thereof and
supersede all oral negotiations and prior writings with respect to the subject
matter thereof. No amendment of this Amendment, and no waiver of anyone or more
of the provisions hereof shall be effective unless set forth in writing and
signed by the parties hereto. This Amendment shall constitute a Loan Document
for all purposes of the Loan Agreement and the other Loan Documents.
(c) The illegality, unenforceability or inconsistency of any
provision of this Amendment shall not in any way affect or impair the legality,
enforceability or consistency of the remaining provisions of this Amendment or
the Loan Documents.
(d) This Amendment and the Loan Documents are intended to be
consistent However, in the event of any inconsistencies among this Amendment and
any of the Loan Documents, the terms of this Amendment, then the Loan Agreement,
shall control.
(e) At Agent's request, the Obligated Parties shall execute and
deliver such additional documents and take such additional actions as Agent
reasonably requests to effectuate the provisions and purposes of this Amendment
and to protect and/or maintain perfection of Agent's and Lenders' security
interests in and liens upon the Collateral.
(f) This Amendment shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors and assigns.
(g) This Amendment may be executed in any number of counterparts and
by the different parties on separate counterparts. Each such counterpart shall
be deemed an original,
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but all such counterparts shall together constitute one and the same agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have entered into this Amendment on the
date first above written.
BORROWERS:
AMERICAN COMMERCIAL BARGE LINE
LLC AMERICAN COMMERCIAL LINES LLC
AMERICAN COMMERCIAL TERMINALS
LLC HOUSTON FLEET LLC
LOUISIANA DOCK COMPANY LLC
JEFFBOAT LLC
By: /s/ Xxxxxxxxxxx X. Black
-----------------------------
Printed: Xxxxxxxxxxx X. Black
Title: Senior Vice President and Chief Financial Officer
GUARANTORS:
ACBL LIQUID SALES LLC
ACL FINANCE CORP.
AMERICAN BARGE LINE COMPANY
AMERICAN COMMERCIAL LINES INC.
AMERICAN COMMERCIAL LINES INTERNATIONAL LLC
AMERICAN COMMERCIAL LOGISTICS LLC
AMERICAN COMMERCIAL TERMINALS-MEMPHIS LLC
COMMERCIAL BARGE LINE COMPANY
LEMONT HARBOR & FLEETING SERVICES LLC
ORINOCO TASA LLC
ORINOCO TASV LLC
By: /s/ Xxxxxxxxxxx X. Black
----------------------------
Printed: Xxxxxxxxxxx X. Black
Title: Senior Vice President and Chief Financial Officer
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ADMINISTRATIVE AGENT AND COLLATERAL AGENT
BANK OF AMERICA, N.A., ON BEHALF OF THE MAJORITY LENDERS
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Printed: Xxxxxx Xxxxxxxxx
Title: Vice President
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