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EXHIBIT B2
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of January 30, 1998 (this
"Amendment") is among XXXXX CORPORATION, a Nevada corporation (the "Borrower"),
the banks named on the signature pages hereto, and CHASE BANK OF TEXAS, N.A.
(formerly known as Texas Commerce Bank National Association), as Funds
Administrator and Agent.
PRELIMINARY STATEMENT
(1) Pursuant to that certain Credit Agreement dated as of September 19,
1997 (the "Existing Credit Agreement"), among the Borrower, the banks named
therein, the Fund Administrator and the Agent, the Banks have made a revolving
credit facility available to the Borrower upon the terms and conditions set
forth therein.
(2) The Borrower has requested that certain provisions of the Existing
Credit Agreement be amended, and the Bank Group has agreed to amend such
provisions to the extent and in the manner set forth herein.
Accordingly, in consideration of the foregoing and the mutual covenants
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. All capitalized terms defined in the Existing
Credit Agreement, and not otherwise defined herein shall have the same meanings
herein as in the Existing Credit Agreement. Upon the effectiveness of this
Amendment, each reference (a) in the Existing Credit Agreement to "this
Agreement," "hereunder," "herein" or words of like import shall mean and be a
reference to the Existing Credit Agreement, as amended hereby, (b) in the Notes
and the other Loan Documents to the Existing Credit Agreement shall mean and be
a reference to the Existing Credit Agreement, as amended hereby, and (c) in the
Loan Documents to any term defined by reference to the Existing Credit
Agreement shall mean and be a reference to such term as defined in the Existing
Credit Agreement, as amended hereby.
SECTION 1.02. REFERENCES, ETC. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Amendment shall refer
to this Amendment as a whole and not to any particular provision of this
Amendment. In this Amendment, unless a clear contrary intention appears the
word "including" (and with correlative meaning "include") means including,
without limiting the generality of any description preceding such term. No
provision of this Amendment shall be interpreted or constructed against any
Person solely because that Person or its legal representative drafted such
provision.
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ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
SECTION 2.01. AMENDMENT TO SECTION 6.01(c). Section 6.01(c) of the
Existing Credit Agreement is amended and restated to read as follows:
"(c) Minimum Net Worth. Permit Net Worth, measured as of the last day
of any calendar quarter, to be less than the sum of (i) the Base Equity
Amount (as defined below), plus (ii) the lesser of (A) a cumulative amount
equal to fifty percent (50%), if positive, zero percent (0%), if negative,
of Net Income for each fiscal year ending after September 19, 1997 and (B)
$75,000,000. As used herein, the term "Base Equity Amount" means the sum of
(1) $175,000,000 minus (2) an amount equal to the lesser of (x) $50,000,000
and (y) the net reduction in Net Worth after December 31, 1997 attributable
to Borrower's sale, issuance or repurchase of its capital stock."
SECTION 2.02. AMENDMENT TO SECTION 6.05(ii). Section 6.05(ii) of the
Existing Credit Agreement is amended by (a) deleting the word "and" at the end
of clause (B) thereof and substituting "," therefor, and (b) adding a new
clause (D) to the end of Section 6.05 that reads as follows: ", and (D) the
sale of certain assets of Sabine Transportation Company and Xxxxx Tankships,
Inc. to Hvide Marine, Incorporated ("Hvide") and August Trading Company
("August"), consisting of seven (7) Xxxxx Act product tankships, seven (7)
harbor tugboats, land and improvements (approximately 30 acres) along the
Sabine-Neches Waterway, and certain other property, all as more specifically
described in that certain letter of intent dated December 31, 1997 among Hvide,
August and the Borrower (the "Offshore Tanker/Harbor Services Sale")".
SECTION 2.03. AMENDMENT TO SECTION 6.09. Section 6.09 of the Existing
Credit Agreement is amended to add the following at the end of such section: ";
provided that nothing in this Section 6.09 shall prohibit the consummation of
the Offshore Tanker/Harbor Services Sale".
SECTION 2.04. AMENDMENTS TO ANNEX A. Annex A to the Existing Credit
Agreement is amended as follows:
(a) The definition of Fixed Charges is amended and restated to read as
follows:
"'Fixed Charges' means, for any period, (without duplication ) the sum
of (a) all Interest Expense for such period, plus (b) the aggregate rentals
paid by the Borrower and its Consolidated Subsidiaries (on a consolidated
basis) under Capital Leases during such period, plus (c) all Capital
Expenditures made by the Borrower and its Consolidated Subsidiaries during
such period (excluding any Capital Expenditures made after the Effective
Date for the expansion of such Person's fleet of marine barges, boats and
other operating equipment, as opposed to the mere
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replacement of such Person's existing fleet of marine barges, boats and
other operating equipment), plus(d) the aggregate amount of (i) all
scheduled principal payments required or made during such period on
account of Funded Debt that provides for scheduled principal payments
prior to final maturity, and (ii) in the case of any Funded Debt (other
than Debt under revolving credit facilities) that has an original term in
excess of three years and does not provide for scheduled principal
payments prior to its final maturity, an amount equal to one-sixtieth
(1/60th) per calendar quarter of the average outstanding principal balance
thereof, provided, however, that to the extent such Funded Debt is
attributable to a Guaranty by the Borrower or a Consolidated Subsidiary of
a limited portion of any Debt of an Excluded Affiliate, the amount
included in Fixed Charges pursuant to this clause (d) shall be limited to
the Borrower's proportionate share of such Debt (based upon the amount so
Guaranteed relative to the total amount of such Debt)."
(b) The following definition of Offshore Tanker/Harbor Services
Sale is added thereto after the definition of Note:
" 'Offshore Tanker/Harbor Services Sale' has the meaning specified
in Section 6.05."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.01. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective upon receipt by the Agent of the following, each in form and
substance reasonably satisfactory to the Agent and in such number of
counterparts as may be reasonably requested by the Agent:
(a) This Amendment duly executed by the Borrower and the Majority
Banks.
(b) A certificate of the secretary or an assistant secretary of
the Borrower certifying (i) true and correct copies of resolutions adopted by
the Board of Directors of the Borrower (A) authorizing the execution, delivery
and performance by the Borrower of this Amendment, and (B) authorizing officers
of the Borrower to execute and deliver this Amendment, and (ii) the incumbency
and specimen signatures of the officers of the Borrower executing this
Amendment or any other document on behalf of the Borrower.
(c) A certificate of a Responsible Officer of the Borrower
certifying that, after giving effect to this Amendment, (i) the representations
and warranties contained in Article IV are true and correct on and as of such
date, as though made on and as of such date, and (ii) no Default has occurred
and is continuing, or would result from the execution, delivery or performance
of this Amendment.
(d) Certificates of appropriate public officials as to the
existence and good standing of the Borrower in the States of Nevada and Texas.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank Group to enter into this Amendment, the
Borrower hereby represents and warrants to the Bank Group as follows:
SECTION 4.01. EXISTING CREDIT AGREEMENT. After giving effect to the
execution and delivery of this Amendment and the consummation of the
transactions contemplated hereby, and with this Amendment constituting one of
the Loan Documents, the representations and warranties set forth in Article IV
of the Existing Credit Agreement are true and correct on the date hereof as
though made on and as of such date.
SECTION 4.02. NO DEFAULT. After giving effect to the execution and
delivery of this Amendment and the consummation of the transactions
contemplated hereby, no Default or Event of Default has occurred and is
continuing as of the date hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. AFFIRMATION OF LOAN DOCUMENTS. The Borrower hereby
acknowledges and agrees that all of its obligations under the Existing Credit
Agreement, as amended hereby, and the other Loan Documents shall remain in full
force and effect following the execution and delivery of this Amendment, and
such obligations are hereby affirmed, ratified and confirmed by the Borrower.
SECTION 5.02. COSTS AND EXPENSES. The Borrower agrees to pay on demand
all reasonable costs and expenses incurred by the Agent and the Funds
Administrator in connection with the preparation, execution, delivery, filing,
administration and recording of this Amendment and any other agreements
delivered in connection with or pursuant to this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of Xxxxxxx & Xxxxx
L.L.P., special counsel to the Agent.
SECTION 5.03. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the Borrower and the Bank Group and their
respective successors and assigns.
SECTION 5.04. CAPTIONS. The captions in this Amendment have been
inserted for convenience only and shall be given no substantive meaning or
significance whatsoever in construing the terms and provisions of this
Amendment.
SECTION 5.05. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument.
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SECTION 5.06. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
SECTION 5.07. FINAL AGREEMENT OF THE PARTIES. THE EXISTING CREDIT AGREEMENT
(INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, THE NOTES AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
XXXXX CORPORATION
By: /s/ XXXXX X. XXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
CHASE BANK OF TEXAS, N.A. (formerly
known as Texas Commerce Bank National
Association), as Funds Administrator, as
Agent, and individually as one of the
Banks
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ XXXXX X. XXX
---------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
By: /s/ XXXXXX X. XXXX
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Group Vice President
CITIBANK, N.A.
By: /s/ XXXX X. XXXXX
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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CORESTATES BANK, N.A.
By: /s/ S. XXXXX XXXXX
----------------------------
Name: S. Xxxxx Xxxxx
Title: Vice President
DEPOSIT GUARANTY NATIONAL BANK
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: X.X.
XXXXX FARGO BANK
By: /s/ XXXXX X. XXXXX
----------------------------
Name: Xxxxx X. XXXXX
Title: Relationship Manager
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