FIRST AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER TO MORTGAGES
EXHIBIT
4.8
EXECUTION
COPY
FIRST
AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER
TO
MORTGAGES
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT AND LIMITED
WAIVER TO MORTGAGES (this “Amendment”) is dated as of
August 4, 2006 and is entered into by and among J. XXX
XXXXXXXXX, S.A., a Panamanian corporation (the “Borrower”), CERTAIN FINANCIAL INSTITUTIONS
listed on the signature pages hereto (the “Lenders”), and CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity,
“Administrative Agent”)
and as Collateral Agent (in such capacity, “Collateral Agent”), and is
made with reference to (i) that certain CREDIT AGREEMENT dated as of
June 6, 2006 (as amended through the date hereof, the “Credit Agreement”) by and
among Borrower, Lenders, Administrative Agent and the other agents party thereto
and (ii) the Mortgages with respect to the Mortgaged Vessels executed in
connection with the Credit Agreement. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement after giving effect to this Amendment.
RECITALS
WHEREAS, the Borrower has
requested that Requisite Lenders agree to (i) amend certain provisions of the
Credit Agreement as provided for herein and (ii) waive certain provisions of the
Mortgages as provided for herein; and
WHEREAS, subject to certain
conditions, Requisite Lenders are willing to agree to (i) such amendment
relating to the Credit Agreement and (ii) such waiver relating to the
Mortgages.
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
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SECTION
I.
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Amendments
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1.1
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Amendments to Section
1: Definitions.
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A. Section
1.1 of the Credit Agreement is hereby amended by adding the following
definitions in proper alphabetical sequence:
“First Amendment” means
that certain First Amendment to Credit Agreement and Limited Waiver to Mortgages
dated as of August 4, 2006 among Borrower, Administrative Agent and the Lenders
on the signature pages thereto.
“First Amendment Effective
Date” means the date of satisfaction of the conditions referred to in
Section III of the First Amendment.
B. The
definition of “EBITDA”
set forth in Section 1.1 of the Credit Agreement is hereby amended by deleting
the word “and” before subclause (vi) in clause (a) thereof and inserting a new
subclause (vii) as follows:
“ and (vii) the amount of
any prepayment premiums paid in connection with the tender offer for the
Borrower’s Existing Secured Notes;”.
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SECTION
II.
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LIMITED
WAIVER
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2.1
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Waiver.
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Subject
to the terms and conditions set forth herein and in reliance on the
representations and warranties of the Borrower herein contained, effective upon
satisfaction of the conditions precedent set forth in Section III below,
Requisite Lenders hereby consent to the waiver of the requirements of the first
sentence of Article
I, Section
15(b) of each Mortgage of a Mortgaged Vessel with respect to the
requirements to furnish to the Collateral Agent a mortgagee’s single interest
policy providing coverage in an amount equal to at least 105% of the amount of
the Insured Value (as defined in each such Mortgage) of all Mortgaged
Vessels; provided, the
Borrower shall furnish to the Collateral Agent a mortgagee’s single interest
policy providing coverage in an amount equal to at least 100% of the amount of
the Insured Value of all Mortgaged Vessels.
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2.2
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Limitation of
Waiver .
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The waiver set forth above shall be
limited precisely as written and relate solely to the waiver of the provisions
of the Mortgages in the manner and to the extent described above, and nothing in
this Amendment shall be deemed to:
(a) constitute
a waiver of compliance by Borrower with respect to any other term, provision or
condition of the Credit Agreement or any other instrument or agreement referred
to therein; or
(b) except
as expressly set forth herein, prejudice any right or remedy that any Agent or
any Lender may now have or may have in the future under or in connection with
the Credit Agreement or any other instrument or agreement referred to
therein.
Except as
expressly set forth herein, the terms, provisions and conditions of the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
in all other respects are hereby ratified and confirmed.
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SECTION
III.
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CONDITIONS
TO EFFECTIVENESS
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This
Amendment shall become effective as of the date hereof only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. Execution. Administrative
Agent shall have received a counterpart signature page of this
Amendment duly executed by each of the Borrower and Requisite
Lenders.
B. Necessary Consents. Borrower
shall have obtained all material consents necessary or advisable in
connection with the transactions contemplated by this Amendment.
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SECTION
IV.
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REPRESENTATIONS
AND WARRANTIES
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In order
to induce Lenders to enter into this Amendment, to amend the Credit Agreement in
the manner provided herein and to waive the provisions of the Mortgages in the
manner provided herein, the Borrower represents and warrants to each Lender that
the following statements are true and correct in all material
respects:
A. Corporate Power and
Authority. The Borrower has all requisite power and authority
to enter into this Amendment and to carry out the transactions contemplated
by, and perform its obligations under, the Credit Agreement and the other Loan
Documents.
B. Authorization of
Agreements. The execution and delivery of this Amendment has
been duly authorized by all necessary action on the part of the
Borrower.
C. No Conflict. The
execution and delivery by the Borrower of this Amendment does not and will not
(i) violate (A) any provision of any law, statute, rule or regulation, or of the
certificate or articles of incorporation or partnership agreement, other
constitutive documents or by-laws of Borrower or (B) any applicable order of any
court or any rule, regulation or order of any Governmental Authority,
(ii) be in conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under any Contractual Obligation
of the Borrower, where any such conflict, violation, breach or default referred
to in clause (i) or (ii) of this Section IV.C., individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect, (iii) except as
permitted under the Credit Agreement, result in or require the creation or
imposition of any Lien upon any of the properties or assets of the Borrower
(other than any Liens created under any of the Loan Documents in favor of
Collateral Agent on behalf of Lenders), or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
Contractual Obligation of the Borrower, except for such approvals or consents
which will be obtained on or before the First Amendment Effective Date and
except for any such approvals or consents the failure of which to obtain will
not have a Material Adverse Effect.
D. Governmental
Consents. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be
required in connection with the execution and delivery by the Borrower of this
Amendment, except for such actions, consents and approvals the failure to obtain
or make which could not reasonably be expected to result in a Material Adverse
Effect or which have been obtained and are in full force and
effect.
E. Binding
Obligation. This Amendment has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors’ rights
generally and except as enforceability may be limited by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
F. Incorporation of Representations and
Warranties From Credit Agreement. The representations and warranties
contained in Article IV of the Credit Agreement are and will be true and correct
in all material respects on and as of the First Amendment Effective Date to the
same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true and correct in all material respects on and as of such
earlier date.
G. Absence of
Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default, except for the events
expressly being waived hereby.
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SECTION
V.
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MISCELLANEOUS
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A. Effect on
the Credit Agreement and the Other Loan Documents.
(i) Except as
specifically modified by this Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
(ii) The
execution, delivery and performance of this Amendment shall not constitute a
waiver of any provision of, or operate as a waiver of any right, power or
remedy of any Agent or Lender under, the Credit Agreement or any of the other
Loan Documents except as otherwise expressly provided for herein.
B. Headings. Section and
Subsection headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
C. Applicable
Law. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
D. 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 an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
[Remainder of this page intentionally
left blank.]
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first written
above.
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BORROWER:
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J.
XXX XXXXXXXXX, S.A.
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By:_/s/ Xxxxx X.
Xxxxx
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Name: Xxxxx
X. Xxxxx
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Title: Vice
President & Treasurer
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AGENT
and LENDER:
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CREDIT
SUISSE, CAYMAN ISLANDS BRANCH,
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as
Administrative Agent, Lender, Synthetic Investor and Collateral
Agent
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By:
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/s/Xxxxxx
Xxxx
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Name: Xxxxxx
Xxxx
Title: Managing
Director
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By:
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/s/Xxxxxxxxx
Xxxxxxx
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Name: Xxxxxxxxx
Xxxxxxx
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Title: Vice
President
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LENDERS:
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By
signing below, you have indicated your consent to the First Amendment to the
Credit Agreement and Limited Waiver to Mortgages
Name of
Institution:
Arab
Banking Corporation (A.B.C.)
By: /s/Xxxxxxx X.
Xxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxx
Title: VP
Head of Credit
By: /s/Xxxxxx X.
Xxxxxxxxx
Name: Xxxxxx
X. Xxxxxxxxx
Title: General
Manager
Bank of
America, N.A.
By: /s/Xxxxxx X.
Xxxxxxxx
Name: Xxxxxx
X. Xxxxxxxx
Title: Managing
Director
The Bank
of Nova Scotia
By: /s/X.
Xxxx
Name: X.
Xxxx
Title: Senior
Manager
Calyon
New York Branch
By: /s/Page
Dillehunt
Name: Page
Dillehunt
Title: Managing
Director
By: /s/Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Director
JPMorgan
Chase Bank, N.A.
By: /s/Xxxxxx X.
Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title: Vice
President
Natexis
Banques Populaires
By: /s/Xxxxxxx
Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Vice
President & Group
Manager
By: /s/Xxxxx X. XxXxxxx,
III
Name: Xxxxx
X. XxXxxxx, III
Title: Vice
President & Group
Manager
PNC Bank
National Association
By: /s/Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Senior
Vice President
UBS Loan
Finance LLC
As a
Synthetic Investor and Lender
By: /s/Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Director,
Banking Products
Services,
U.S.
By: /s/Xxxx X.
Xxxx
Name: Xxxx
X. Xxxx
Title: Associate
Director Banking
Products
Services, U.S.
Wachovia
Bank, National Association
By: /s/Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Vice
President
Regions
Bank
By: /s/Xxxxx X.
Page
Name: Xxxxx
X. Page
Title: Senior
Vice President
Whitney
National Bank
By: /s/Xxxxx X. Xxxxxxxx,
Xx.
Name: Xxxxx
X. Xxxxxxxx, Xx.
Title: Vice
President
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