EXHIBIT 10.1
AMENDMENT NO. 3
TO
CREDIT AGREEMENT
AMENDMENT NO. 3 ("Amendment No. 3") dated as of June 9, 2000 to the Credit
Agreement dated as of November 3, 1999, as amended (the "Credit Agreement"),
among XXXXXX XXXXXXX HALTER, INC., a corporation organized and existing under
the laws of the State of Mississippi (the "Borrower"), the financial
institutions listed on the signature page hereof (the "Lenders"), XXXXX FARGO
BANK (TEXAS), NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent and Co-Arranger (the "Agent"), and BANK ONE CAPITAL
MARKETS, INC., as Co-Arranger and Syndication Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders made available to
the Borrower a loan facility of up to USD 164,218,250, as evidenced by the
promissory notes of the Borrower dated November 3, 1999; and
WHEREAS, the aggregate principal amount of Advances under the Credit
Agreement is in excess of the Borrowing Base as of the date hereof, in
contravention of the terms of the Credit Agreement; and
WHEREAS, the Borrower has requested the Lenders to make certain concessions
to the Borrower as a result of such discrepancy; and
WHEREAS, the Lenders have agreed to amend the Credit Agreement upon the
terms and conditions set forth in this Amendment No. 3.
NOW THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. DEFINITIONS.
(a) Amendment No. 3. A definition of "Amendment No. 3" is hereby added
to the Credit Agreement and reads as follows:
"Amendment No. 3" means the Amendment No. 3 to Credit Agreement dated
June 9, 2000 among the Borrower, the Lenders and the Agent.
(b) Xxxxxxxxx Sale. A definition of "Xxxxxxxxx Sale" is hereby added
to the Credit Agreement and reads as follows:
"Xxxxxxxxx Sale" means the proposed sale of certain assets of the
Borrower to Xxxxxxxxx Shipyards, Inc., as set forth in that certain
asset purchase agreement dated May 31, 2000.
(c) Borrowing Base. The following sentence is hereby added to the
definition of "Borrowing Base":
"Notwithstanding anything in the Credit Agreement or any Borrowing
Base Report or other certificate to the contrary, the Borrower and the
Lenders agree that the Borrowing Base for the Overadvance Period shall
be deemed to be USD 88,000,000, irrespective of what the actual
Borrowing Base is for the Overadvance Period."
(d) Commitment Reduction Fee. The definition of "Commitment Reduction
Fee" is hereby amended to read as follows:
"Commitment Reduction Fee" shall mean a fee equal to two and one-half
percent (2.5%) of the Commitment as of the Amendment Date, payable to
the Agent for the ratable benefit of the Lenders, subject to a single
reduction in accordance with the following table:
Commitment Amount
By 7/31/00 By 8/31/00
Less than $100,000,000 10% 5%
Less than $75,000,000 20% 15%
Less than $50,000,000 30% 25%
$0 40% 35%
The Commitment Reduction Fee shall be reduced in
accordance with the highest percentage corresponding to the level
of the reduction of the Commitment attained by the Borrower. As
an example, if the Borrower reduces the Commitment by July 31,
2000 to an amount less than $100,000,000 but greater than
$75,000,000, the Commitment Reduction Fee shall be reduced by
10%. If the Borrower then reduces the Commitment to less than
$75,000,000 but greater than $50,000,000 by August 31, 2000, the
total aggregate reduction in the Commitment Reduction Fee shall
be 15%."
(e) Interest Payment Date. The definition of "Interest Payment Date"
is hereby amended to read as follows:
"Interest Payment Date" means, with respect to any Base
Rate Advance, the date of Amendment No. 3 for interest accruing
through May 31, 2000, and thereafter on the last Business Day of
each calendar month and, with respect to any LIBOR Advance, the
last day of the relevant Interest Period except if such Interest
Period is longer than three (3) months, every three (3) months
and the last day of such Interest Period.
(f) Overadvance Limit. A definition of "Overadvance Limit" is hereby
added to the Credit Agreement and reads as follows:
"Overadvance Limit" means USD 110,000,000, which may,
only upon the unanimous written approval of the Lenders, be
increased to USD 117,480,381.
(g) Overadvance Period. A definition of "Overadvance Period" is
hereby added to the Credit Agreement and reads as follows:
"Overadvance Period" means the period from the date of
Amendment No. 3 to and including June 29, 2000."
2. OVERADVANCE PERIOD ADVANCES. The following sentence is hereby
added to Section 2.2(a) of the Credit Agreement:
"Notwithstanding the provisions of Section 2.2(b) below, the Lenders agree
that, during the Overadvance Period only, and subject to the provisions of
Amendment No. 3 and the other provisions of this Credit Agreement, the
Lenders shall make available to the Borrower one or more Advances which,
together with the principal amount of all Advances outstanding under the
Credit Agreement as of the date of Amendment No. 3, shall not exceed the
Overadvance Limit, irrespective of the Borrowing Base for the Overadvance
Period. On the Business Day immediately following the Overadvance Period,
the terms of Section 2.2(b) shall be fully applicable to the Loan."
3. REDUCTION OF REVOLVING COMMITMENT. Section 2.1(e) of the Credit
Agreement is hereby amended to read in its entirety as follows:
"(e) The Revolving Loan Commitment shall be (i) reduced by seventy-
five percent (75%) of the Net Proceeds of any Asset Sales, and (ii) repaid
and reduced by one hundred percent (100%) of the proceeds of all tax
refunds of the Borrower or any Subsidiary from any source whatsoever,
federal or state."
4. TERMINATION OF REVOLVING COMMITMENT. A new Section 2.1(g) is
hereby added to the Credit Agreement which reads as follows:
"(g) The Revolving Loan Commitment shall terminate immediately and
without notice to the Borrower upon the occurrence of a material adverse
change to the Xxxxxxxxx Sale or the terms thereof. For purposes of this
Section 2.1(g), "material adverse change" shall mean (i) a reduction in the
sales price of USD 4,000,000 or greater, or any other change having
substantially the same effect, (ii) any agreement by the Borrower to accept
any of the sales price in any form other than in immediately available
funds, except for cash paid into escrow pursuant to the terms of the
Xxxxxxxxx Sale, (iii) the failure of the Xxxxxxxxx Sale to close and fund
before July 31, 2000 or (iv) the cessation of negotiations between the
parties to the Xxxxxxxxx Sale prior to the consummation thereof, such
cessation to be determined by the Lenders in their sole discretion."
5. AFFIRMATIVE COVENANTS. Section 11 of the Credit Agreement is
amended as follows:
(a) The following is hereby added to Section 11.1(e) of the Credit
Agreement:
"The Borrower shall provide the Borrowing Base Report for the
period ending May 31, 2000 to the Agent no later than June 27,
2000. At the same time as each of the foregoing reports is
delivered, the Borrower shall deliver to the Agent a copy of
monthly consolidated financial statements for the Borrower
certified by the chief financial officer or chief accounting
officer or treasurer of the Borrower together with monthly
consolidating statements of the Borrower."
(b) A new Section 11.12 is hereby added to the Credit Agreement and
reads as follows:
"11.12 Tax Refunds. The Borrower shall immediately
remit and shall insure that each Guarantor immediately remits to
the Lenders each and every refund from any Governmental Agency,
including without limitation, each tax refund from any taxing
authority to an account specified by the Agent for the receipt
thereof. The Borrower shall cooperate and shall ensure that each
Guarantor cooperates with the Agent in executing or providing any
notices, payment instructions or other forms, documents or
instruments required by the Agent to effect the payment of any
such refunds to the Lenders, including, without limitation,
assignments of any such refunds and tax returns. The Borrower
shall provide the Agent with copies of any proposed federal tax
returns to be filed by the Borrower no less than seven (7)
Business Days prior to the filing thereof, which returns shall
contain payment or assignment forms or instructions from the
Borrower, duly completed and executed by the Borrower and in form
and substance acceptable to the Agent."
(c) A new Section 11.13 is hereby added to the Credit Agreement and
reads as follows:
"11.13. Shelf Registration.
(a) On or prior to June 30, 2000, the Borrower shall file with
the SEC a "shelf" registration statement for an amount of not
less than $150,000,000, on Form S-3 (the "Registration
Statement") and the Borrower shall use its reasonable best
efforts to make such Registration Statement effective as soon as
possible. In addition, if the Agent or any Lender becomes the
holder of any common stock or warrants to purchase common stock
of the Borrower, the Borrower shall provide the Agent or such
Lender customary registration rights with respect to such common
stock or warrants. The Borrower represents and warrants to the
Lenders that no shareholder approval is required for the issuance
by the Borrower of any additional common stock or warrants for
the purchase thereof, or for the issuance in a single transaction
of common stock or warrants for the purchase thereof representing
ten percent (10%) of the issued and outstanding common stock of
the Borrower.
(d) A new Section 11.14 is hereby added to the Credit Agreement and
reads as follows:
"11.14. Escrow Account Pledge. Within five (5) Business Days
following notice by the Agent to the Borrower, the Borrower shall
provide the Agent with a pledge, in form and substance
satisfactory to the Agent, pledging in favor of the Agent for the
ratable benefit of the Lenders all of the Borrower's right, title
and interest in and to that certain escrow account with The
Whitney National Bank in respect of certain tax credits assigned
to the Borrower by Trinity Industries and all deposits from time
to time in such account, and the Borrower shall use its best
efforts to obtain such further documents or notices required to
perfect such pledge under applicable state law."
6. CONDITIONS PRECEDENT.
6.1 Documents Required as Conditions Precedent to Amendment No. 3. The
effectiveness of the modifications to the Credit Agreement contemplated by this
Amendment No. 3 is subject to the condition precedent that the Agent shall have
received at or prior to the date of this Amendment No. 3 all of the following,
each dated on or before the date of this Amendment No. 3 and each in form and
substance satisfactory to the Agent and its counsel:
(a) Each of the following documents (the "Amendment Documents") shall
have been duly authorized and executed with original counterparts thereof
delivered to the Agent:
(i) This Amendment No. 3;
(ii) Amendment No. 3 to the United States First Preferred Fleet
Mortgages;
(iii) Ratification of Guaranty executed by the Guarantors;
(iv) A Borrowing Base report for the period ending April 30,
2000;
(v) Evidence satisfactory to the Agent that the Lenders have a
perfected security interest in any inventory and equipment
of the Borrower and the Guarantors located in Newfoundland;
(vi) Payment by the Borrower of the Agent's fees and expenses
incurred in connection with the Credit Agreement and any
amendments thereto through and including the date of this
Amendment No. 3;
(vii) Evidence satisfactory to the Agent that there has been no
material adverse effect as defined in Section 2.1(g) of
the Credit Agreement set forth in this Amendment No. 3;
and
(viii) such further documents as the Lenders may reasonably
request.
(b) The representations and warranties contained in Section 10 of the
Credit Agreement shall be true on the date of this Amendment No. 3 with the
same effect as though such representations and warranties had been made on
and as of such date, and no Event of Default specified in Section 13 of the
Credit Agreement and no event which, with the lapse of time or the giving
of notice and the lapse of time specified in Section 13 of the Credit
Agreement, would become such an Event of Default, shall have occurred and
be continuing.
6.2 Waiver of Conditions Precedent. All of the conditions precedent
contained in this Section 7 are for the sole benefit of the Agent and the
Lenders and the Agent may waive any of them in its absolute discretion, and on
such conditions as it deems proper.
7. REPRESENTATIONS. The Borrower represents and warrants that:
(a) The Borrower is a corporation, duly organized and validly existing
in good standing under the laws of the State of Mississippi, and has the
requisite power and authority (i) to carry on its business as presently
conducted; and (ii) to enter into and perform its obligations under the
Amendment Documents.
(b) The execution, delivery and performance by Borrower and the
Guarantors of the Amendment Documents and any other instrument or agreement
provided for by this Amendment No. 3 to which it is a party, have been duly
authorized by all necessary corporate action, do not require stockholder
approval other than such as has been duly obtained or given, do not or will
not contravene any of the terms of its Certificate of Incorporation or
Bylaws, or similar such organizational documentation, and will not violate
any provision of law or of any order of any court or governmental agency or
constitute (with or without notice or lapse of time or both) a default
under, or result (except as contemplated by this Amendment No. 3) in the
creation of any security interests, lien, charge or encumbrance upon any of
its properties or assets pursuant to, any agreement, indenture or other
instrument to which it is a party or by which it may be bound other than is
in favor of the Agent; the Amendment Documents have been duly executed and
delivered by the Borrower and the Guarantors and constitute the respective
legal, valid and binding agreements, enforceable in accordance with the
respective terms thereof as to which each of the Borrower and the
Guarantors is a party. The enforceability of this Amendment No. 3,
however, is subject to all applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the rights
or creditors and to general equity principles.
(c) Except as set forth in the Credit Agreement, there are no suits or
proceedings pending or to its knowledge threatened against or affecting
Borrower or any Guarantor which if adversely determined would have a
material adverse effect upon its business, financial condition or
operations.
(d) Other than such as have been obtained, no license, consent or
approval of any Governmental Agency or other regulatory authority is
required for the execution, delivery or performance of this Amendment No. 3
or any other Amendment Document or any instrument contemplated herein or
therein.
8. EXPENSES. The Borrower agrees to promptly, whether or not the modifications
to the Credit Agreement contemplated by this Amendment No. 3 become effective,
(x) reimburse the Agent for all fees and disbursements of external counsel to
the Agent and all reasonable out of pocket fees and disbursements of the Agent
incurred in connection with the preparation, execution and delivery of this
Amendment No. 3 and all other documents referred to herein, and all amendments
or waivers to or termination of this Amendment No. 3 or any agreement referred
to herein; and (y) reimburse the Agent for all fees and disbursements of
internal and external counsel to the Agent and all reasonable out of pocket
fees, disbursements and travel-related expenses of the Agent incurred in
connection with the protection of the rights of the Agent under this Amendment
No. 3 and all other documents referred to herein, whether by judicial
proceedings or otherwise. The obligations of the Borrowers under this Section 8
shall survive payment of the Loan.
9. Wherever and in each such place the term "Credit Agreement" is used
throughout the Credit Agreement, such term shall be read to mean the Credit
Agreement as amended by this Amendment No. 3.
10. Except as specifically amended by this Amendment No. 3, all of the terms
and provisions of the Credit Agreement shall remain in full force and effect.
11. All capitalized terms used herein but not defined herein shall have the
meanings given to them in the Credit Agreement.
12. THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS.
13. The Lenders hereby agree to waive any default or Event of Default
under Section 2.2(b) of the Credit Agreement through June 9, 2000. The
foregoing waiver is subject to the Borrower satisfying all conditions precedent
hereunder, and shall not be construed as a waiver of any other provision of the
Credit Agreement or as an agreement by the Agent or the Lenders to waive or
modify Section 2.2(b), or any other provision, of the Credit Agreement in the
future.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
No. 3 to Credit Agreement on the date first written above.
BORROWER:
XXXXXX XXXXXXX HALTER, INC.
By:
-----------------------------------------
Name:
Title:
LENDERS:
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
ROYAL BANK OF CANADA
By:
-----------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By:
-----------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
-----------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT AND CO-ARRANGER:
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SYNDICATION AGENT AND CO-ARRANGER:
BANC ONE CAPITAL MARKETS, INC.
By:
-----------------------------------------
Name:
Title:
