AMENDMENT NO. 5 TO CREDIT AGREEMENT
EXHIBIT 10.1
AMENDMENT NO. 5 TO CREDIT AGREEMENT
This AMENDMENT NO. 5 TO CREDIT AGREEMENT (this “Amendment”), dated as of June 26,
2008, is entered into by and among (1) AMERICAN COMMERCIAL LINES LLC, a Delaware limited liability
company, JEFFBOAT LLC, a Delaware limited liability company, and ACL TRANSPORTATION SERVICES LLC, a
Delaware limited liability company (formerly known as Louisiana Dock Company LLC) (each a
“Borrower” and collectively, the “Borrowers”); (2) the Required Lenders (as defined
in the Credit Agreement referred to below); and (3) XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Security Trustee, L/C Issuer and Swing Line Lender, with respect to the
following:
A. The Borrowers, the Administrative Agent and the Lenders have previously entered into that
certain Credit Agreement dated as of April 27, 2007 (as amended prior to the date hereof, the
“Existing Credit Agreement” and as the same may be further amended, restated, supplemented
or otherwise modified and in effect from time to time, including, but not limited to, by this
Amendment, the “Credit Agreement”). Capitalized terms are used in this Amendment as
defined in the Credit Agreement, unless otherwise defined herein.
B. The Borrowers have requested certain amendments to the Existing Credit Agreement as set
forth below.
C. The Administrative Agent and the Required Lenders are willing to grant such requests on the
terms and subject to the conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Effectiveness. The effectiveness of the provisions of Section 2 of this
Amendment is subject to the satisfaction of the conditions further described in Section 4
of this Amendment.
2. Amendments.
(a) Maturity Date. On the terms and subject to the conditions of this Amendment, the
definition of Maturity Date in Section 1.01 of the Existing Credit Agreement is hereby amended and
restated in its entirety as follows:
“Maturity Date” shall mean March 31, 2009.
(b) Pricing Grid.
(i) On the terms and subject to the conditions of this Amendment, the chart in the definition
of Pricing Grid in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in
its entirety as follows:
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| Pricing Grid | ||||||||||||||||
| Applicable | Applicable | |||||||||||||||
| Margin for | Margin for Base | Commitment Fee | ||||||||||||||
| Tier | Total Leverage Ratio | LIBOR Loans | Rate Loans | Percentage | ||||||||||||
1 |
³ 3.50 | 3.00% | 1.75% | 0.50% | ||||||||||||
2 |
³ 3.00 < 3.50 | 2.75% | 1.50% | 0.45% | ||||||||||||
3 |
³ 2.50 < 3.00 | 2.50% | 1.25% | 0.40% | ||||||||||||
4 |
³ 2.00 < 2.50 | 1.75% | 0.50% | 0.30% | ||||||||||||
5 |
< 2.00 | 1.50% | 0.25% | 0.25% | ||||||||||||
(ii) For the avoidance of doubt, all accrued and unpaid interest, Letter of Credit fees and
Commitment Fees outstanding prior to the Amendment Effect Date shall be priced according to the
Pricing Grid as in effect prior to the Amendment Effect Date.
(c) Total Revolving Loan Commitment; Schedule I.
(i) On the terms and subject to the conditions of this Amendment, the definition of Total
Revolving Loan Commitment in Section 1.01 of the Existing Credit Agreement is hereby amended and
restated in its entirety as follows:
“Total Revolving Loan Commitment” shall mean, at any time, Five Hundred Fifty
Million Dollars ($550,000,000) or, if such amount is reduced pursuant to Section
2.04(a) or (b), the amount to which so reduced and in effect at such time.
(ii) For the avoidance of doubt, the commitment reduction resulting from the foregoing
amendment of the definition of Total Revolving Loan Commitment shall reduce the Revolving Loan
Commitment of each Lender as in effect immediately prior to the Amendment Effective Date (as
defined below) on a pro rata basis. To confirm the Revolving Loan Commitment of each Lender after
giving effect to such decrease in the Total Revolving Loan Commitment, on the terms and subject to
the conditions of this Amendment, Part A of Schedule I to the Existing Credit Agreement is hereby
amended and restated in its entirety as set forth on Attachment I attached hereto.
(d) Acquisitions/Section 5.02(d)(ii).
(i) On the terms and subject to the conditions of this Amendment, the lead-in paragraph of
Section 5.02(d)(ii) of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:
“(ii) If the Total Leverage Ratio is less than 2.75 to 1.00 as reflected in the most
recently delivered Compliance Certificate required by this Agreement and on a pro forma
basis for any acquisition subsequently described in this clause (ii) (such pro forma
calculation shall use the Total Debt as of the date of the proposed acquisition and after
giving effect to any such acquisition and the Adjusted EBITDA for the four quarter period
reflected in such recently delivered Compliance Certificate (with the addition or
subtraction, if applicable, of the Adjusted EBITDA of the Acquired Person that is the subject of the proposed acquisition as contemplated in the
definition of Adjusted
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EBITDA)), then the following exception to Section 5.02(d)
shall be applicable: acquisitions by a Borrower or a Guarantor of any Person or the assets
of a Person as a new Subsidiary or of all or substantially all of the assets of any other
Person or identifiable business unit or division of any other Person (in each case, the
“Proposed Target”); provided that, unless otherwise agreed to in writing by
the Administrative Agent (with the written approval of the Required Lenders) with respect to
any of the below requirements in connection with a particular acquisition:”
(ii) On the terms and subject to the conditions of this Amendment, the period at the end of
Section 5.02(d)(ii)(K) of the Existing Credit Agreement is hereby deleted and replaced with a
semi-colon, and the following language is added to the end of Section 5.02(d)(ii) of the Existing
Credit Agreement immediately below the end of Section 5.02(d)(ii)(K) of the Existing Credit
Agreement:
“provided that if after the Total Leverage Ratio is less than 2.75 to 1.00 as
contemplated above and then the Total Leverage Ratio is subsequently equal to or greater
than 2.75 to 1.00, then no additional Permitted Acquisitions shall be permitted under this
Section 5.02(d)(ii) until such time as all conditions set forth in this Section 5.02(d)(ii)
are fully satisfied.”
(e) Investments/Section 5.02(e)(v). On the terms and subject to the conditions of
this Amendment, Section 5.02(e)(v) of the Existing Credit Agreement is hereby amended and restated
in its entirety as follows:
“(v) If the Total Leverage Ratio is less than 2.75 to 1.00 as reflected in the most
recently delivered Compliance Certificate required by this Agreement and on a pro forma
basis for any Investment(s) subsequently described in this clause (v) (such pro forma
calculation shall use the Total Debt as of the date of the proposed Investment and after
giving effect to any such Investment and the Adjusted EBITDA for the four quarter period
reflected in such recently delivered Compliance Certificate), then in addition to
Investments otherwise expressly permitted by this Section 5.02(e) (provided no Event
of Default then exists or results therefrom), Investments by the Borrower and its Domestic
Subsidiaries in Joint Ventures which are organized under the laws of the United States of
America or any state thereof in an aggregate amount (valued at cost) not to exceed
$50,000,000 as to any such Joint Venture or $100,000,000 in the aggregate as to all such
Joint Ventures since the date of this Agreement; provided that if after the Total
Leverage Ratio is less than 2.75 to 1.00 as contemplated above and then the Total Leverage
Ratio is subsequently equal to or greater than 2.75 to 1.00, then (A) Investments made after
June 26, 2008 and in compliance with this Section 5.02(e)(v) and prior to the Total Leverage
Ratio being equal to or greater than 2.75 to 1.00 may continue to exist and (B) no
additional Investments under this Section 5.02(e)(v) shall be permitted until such time as
all conditions set forth in this Section 5.02(e)(v) are fully satisfied;”
(f) Distributions/Section 5.02(f)(iv). On the terms and subject to the conditions of
this Amendment, Section 5.02(f)(iv) of the Existing Credit Agreement is hereby amended and restated
in its entirety as follows:
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“(iv) If the Total Leverage Ratio is less than 2.75 to 1.00 as reflected in the
most recently delivered Compliance Certificate required by this Agreement and on a pro
forma basis for any Distribution(s) subsequently described in this clause (iv) (such pro
forma calculation shall use the Total Debt as of the date of the proposed Distribution
and after giving effect to any such Distribution and the Adjusted EBITDA for the four
quarter period reflected in such recently delivered Compliance Certificate), then any
Loan Party may make Distributions if (1) no Default or Event of Default has occurred and
is continuing or would result from such Distribution; and (2) the Borrowers provide the
Administrative Agent a certificate from a Responsible Officer certifying that there is
pro forma compliance with the financial covenants in Section 5.03 and that the
Total Leverage Ratio as of the date of the proposed Distribution will be less than 2.75
to 1.00 after giving effect to such Distributions; provided that if after the
Total Leverage Ratio is less than 2.75 to 1.00 as contemplated above and then the Total
Leverage Ratio is subsequently equal to or greater than 2.75 to 1.00, then no additional
Distributions under this Section 5.02(f)(iv) shall be permitted until such time as all
conditions set forth in this Section 5.02(f)(iv) are fully satisfied.”
(g) Total Leverage Ratio. On the terms and subject to the conditions of this
Amendment, Section 5.03(a) of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(a) Total Leverage Ratio. The Borrowers shall not at any time permit the
Total Leverage Ratio to be greater than 3.75 to 1.00.”
(h) Fixed Charge Coverage Ratio. On the terms and subject to the conditions of this
Amendment, Section 5.03(b) of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(b) Fixed Charge Coverage Ratio. The Borrowers shall not permit the Fixed
Charge Coverage Ratio as at the end of any fiscal quarter to be less than 1.25 to 1.00.”
(i) Subsidiaries. On the terms and subject to the conditions of this Amendment,
Schedule 4.01(o) to the Existing Credit Agreement is hereby amended and restated in its entirety as
set forth on Attachment II attached hereto.
(j) Compliance Certificate. On the terms and subject to the conditions of this
Amendment, Exhibit J (Compliance Certificate) to the Existing Credit Agreement is hereby amended
and restated in its entirety as set forth on Exhibit J attached hereto.
3. Amendment Fee. In addition to all other amounts payable by the Borrowers to the
Administrative Agent, the Security Trustee and/or the Lenders, on the Amendment Effective Date (as
defined below), the Borrowers shall pay to the Administrative Agent, for the account of each Lender
that has executed and delivered this Amendment on or prior to the Amendment Effective Date, a
non-refundable amendment fee in an amount equal to 0.30% of an amount equal to the sum of such
Lender’s Revolving Loan Commitment as of the Amendment Effective Date (after giving effect to the
decrease in the Total Revolving Loan Commitment under this Amendment) (collectively, the “Amendment Fee”). The Amendment
Fee is fully earned, due and payable as of the Amendment Effective Date.
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4. Conditions Precedent to the Effectiveness of this Amendment and Post Closing
Covenants. The effectiveness of the provisions of Section 2 of this Amendment is
conditioned upon, and such provisions shall not be effective until, satisfaction of the following
conditions (the first date on which all of the following conditions have been satisfied being
referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received, on behalf of the Lenders, this Amendment,
duly executed and delivered by the Borrowers, the Administrative Agent, the Required Lenders and
the Guarantors.
(b) The Administrative Agent shall have received, on behalf of the Lenders an amendment to
each Real Property Security Document in form and substance satisfactory to the Administrative
Agent.
(c) The Administrative Agent shall have received from a certificate of the Secretary or an
Assistant Secretary of each Borrower and Guarantor, dated as of the Amendment Effective Date,
certifying that attached thereto are true and correct copies of resolutions duly adopted by the
board of directors of such Borrower or Guarantor and continuing in effect, which authorize the
execution, delivery and performance by such Borrower or Guarantor of this Amendment and the Amended
Credit Agreement (as defined below) and the consummation of the transactions contemplated hereby
and thereby.
(d) The Administrative Agent shall have received the Amendment Fee, on behalf of the Lenders
that have executed and delivered this Amendment as of the Amendment Effective Date.
(e) The representations and warranties set forth in this Amendment shall be true and correct
as of the Amendment Effective Date.
The Administrative Agent is authorized to deliver the Real Property Security Document amendments
(before or after the Amendment Effective Date) to the title company and obtain at the Borrowers’
expense such date down endorsements as the Administrative Agent may require in connection with each
existing title policy, and the Borrowers agree upon request of the title company to execute and
deliver, within 15 days of such request, such affidavits, confirmations and documents of similar
nature as the title company requires in connection with such amendments and endorsements.
5. Representations and Warranties. In order to induce the Administrative Agent and
the Lenders to enter into this Amendment and to amend the Existing Credit Agreement in the manner
provided in this Amendment, the Borrowers represent and warrant to the Administrative Agent and
each Lender as follows:
(a) Authorization of Agreements. The execution and delivery of this Amendment by the
Borrowers and the Guarantors and the performance by the Borrowers of the Existing Credit Agreement
as amended by this Amendment (hereafter referred to as the
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“Amended Credit Agreement”) (i) are within the power of the Borrowers and the
Guarantors and (ii) have been duly authorized by all necessary actions on the part of the Borrowers
and the Guarantors.
(b) Enforceability. Each of this Amendment and the Amended Credit Agreement has been
duly executed and delivered by the Borrowers and the Amendment has been duly executed and delivered
by the Guarantors and, in each case, constitutes a legal, valid and binding obligation of the
Borrowers and the Guarantors (as applicable), enforceable against the Borrowers and the Guarantors
(as applicable) in accordance with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of creditors’ rights generally
and general principles of equity.
(c) Non-Contravention. The execution and delivery by the Borrowers and the Guarantors
of this Amendment and the performance by the Guarantors of this Amendment and the performance by
the Borrowers of each of this Amendment and the Amended Credit Agreement do not (i) violate any
Requirement of Law applicable to any Loan Party; (ii) violate any provision of, or result in the
breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving
of notice or lapse of time or both), any Contractual Obligation of any Loan Party where such
violation, breach or acceleration could result in a Material Adverse Effect; (iii) result in the
creation or imposition of any Lien (or the obligation to create or impose any Lien) upon any
property, asset or revenue of any Loan Party (except for Permitted Liens) or (iv) violate any
provision of any existing law, rule, regulation, order, writ, injunction or decree of any court or
Governmental Authority to which it is subject, where such breach could result in a Material Adverse
Effect.
(d) Governmental Consents. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body is required for the due
execution, delivery and performance by the Borrowers or the Guarantors of this Amendment.
(e) Representations and Warranties in the Credit Agreement. The Borrowers confirm
that as of the Amendment Effective Date and after giving effect to this Amendment, (i) the
representations and warranties contained in Article IV of the Credit Agreement are true and
correct in all material respects (except to the extent any such representation and warranty is
expressly stated to have been made as of a specific date, in which case it shall be true and
correct as of such specific date) and (ii) no Default or Event of Default has occurred and is
continuing.
6. Miscellaneous.
(a) Reference to and Effect on the Existing Credit Agreement and the other Credit
Documents.
(i) Except as specifically amended by this Amendment and the documents executed and delivered
in connection herewith, the Existing Credit Agreement and the other Credit Documents shall remain
in full force and effect and are hereby ratified and confirmed by the Borrowers in all respects.
The Existing Credit Agreement (as amended by this Amendment) and each of the other Credit Documents, taken
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together, constitute and contain the
entire agreement of the Borrowers, the Lenders, the Administrative Agent and the Security Trustee
and supersede any and all prior agreements, negotiations, correspondence, understandings and
communications among the parties, whether written or oral, respecting the subject matter hereof and
thereof including, except to the extent expressly set forth therein, the commitment letter dated as
of March 28, 2007 between Parent and the Administrative Agent but excluding the Administrative
Agent’s Fee Letter.
(ii) The execution and delivery of this Amendment and performance of the Amended Credit
Agreement shall not, except as expressly provided herein, constitute a waiver of any provision of,
or operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders
under, the Existing Credit Agreement or any of the other Credit Documents.
(iii) Upon the conditions precedent set forth herein being satisfied, this Amendment shall be
construed as one with the Existing Credit Agreement, and the Existing Credit Agreement shall, where
the context requires, be read and construed throughout so as to incorporate this Amendment.
(iv) If there is any conflict between the terms and provisions of this Amendment and the terms
and provisions of the Credit Agreement or any other Credit Document, the terms and provisions of
this Amendment shall govern.
(b) Expenses. The Borrowers acknowledge that all costs and expenses of the
Administrative Agent incurred in connection with this Amendment will be paid by the Borrowers in
accordance with Section 8.02 of the Existing Credit Agreement.
(c) Headings. Section and subsection headings in this Amendment are included for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
(d) Counterparts. This Amendment may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes. Transmission by telecopier (or by email of a PDF or
similar electronic image file) of an executed counterpart of this Amendment shall be deemed to
constitute due and sufficient delivery of such counterpart.
(e) Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York without reference to conflicts of law rules other than
Section 5-1401 of the General Obligations Law of the State of New York.
7. Credit Documents. This Amendment is a Credit Document as defined in the Credit
Agreement, and the provisions of the Credit Agreement generally applicable to Credit Documents are
applicable hereto and incorporated herein by this reference.
[This Space Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| AMERICAN COMMERCIAL LINES LLC, a Delaware limited liability company |
||||||
| By: | /s/
Xxxxxx X. Xxxxxxxxx
|
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| Name: | Xxxxxx
X. Xxxxxxxxx
|
|||||
| Title: | VP
& Treasurer
|
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| JEFFBOAT LLC, a Delaware limited liability company |
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| By: | /s/
Xxxxxx X. Xxxxxxxxx |
|||||
| Name: | Xxxxxx X. Xxxxxxxxx
|
|||||
| Title: | VP
& Treasurer
|
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| ACL TRANSPORTATION SERVICES LLC, a Delaware limited liability company (formerly known as Louisiana Dock Company LLC) |
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| By: | /s/
Xxxxxx X. Xxxxxxxxx |
|||||
| Name: | Xxxxxx X. Xxxxxxxxx
|
|||||
| Title: | VP
& Treasurer
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Security Trustee, L/C Issuer, Swing Line Lender and a Lender |
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| By: | /s/
Xxxxx X. Xxxxxxx |
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| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/
Xxxx X. Xxxxxxxxx |
|||||
| Name: | Xxxx
X. Xxxxxxxxx
|
|||||
| Title: | Senior
Vice President
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| BRANCH BANKING AND TRUST COMPANY | ||||||
| By: | /s/
Xxxxxx X. Xxxxx |
|||||
| Name: | Xxxxxx
X. Xxxxx
|
|||||
| Title: | Senior
Vice President
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| FIFTH THIRD BANK | ||||||
| By: | /s/
Xxxxx X. X’Xxxx
|
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| Name: | Xxxxx
X. X’Xxxx
|
|||||
| Title: | Vice
President
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| FORTIS CAPITAL CORP. | ||||||
| By: | /s/
Xxxxx Xxxx |
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| Name: | Xxxxx
Xxxx
|
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| Title: | Managing
Director
|
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| By: | /s/
C. Xxxxxx Xxxxxx |
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| Name: | C.
Xxxxxx Xxxxxx
|
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| Title: | Director
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| GENERAL ELECTRIC CAPITAL CORPORATION | ||||||
| By: | /s/
Xxxxxxx X. Xxxxxxxx |
|||||
| Name: | Xxxxxxx
X. Xxxxxxxx |
|||||
| Title: | Duly
Authorized Signatory |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| JPMORGAN CHASE BANK, N.A. | ||||||
| By: | /s/
Xxxxxxx X. Xxxx |
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| Name: | Xxxxxxx X. Xxxx |
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| Title: | VP |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| LASALLE BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/
Xxxx X. Xxxxxxxxx |
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| Name: | Xxxx X. Xxxxxxxxx
|
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| Title: | Senior
Vice President
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| NATIONAL CITY BANK | ||||||
| By: | /s/
Xxxxx X. Xxxxxxx |
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| Name: | Xxxxx
X. Xxxxxxx
|
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| Title: | SVP
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| OLD NATIONAL BANK | ||||||
| By: | /s/
Xxxxxx Xxxxx |
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| Name: | Xxxxxx
Xxxxx
|
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| Title: | Vice
President
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| PNC BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/
Xxxxxxx X. Xxxxxxx, Xx. |
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| Name: | Xxxxxxx X. Xxxxxxx, Xx. |
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| Title: | Senior
Vice President |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| RBS CITIZENS, N.A. | ||||
| By: | /s/
Xxxxx X. Nazareth
|
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| Name: | Xxxxx X. Nazareth
|
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| Title: | Senior
Vice President |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| STOCK YARDS BANK & TRUST COMPANY | ||||
| By: | /s/
Xxxxxxx X. Xxxxx |
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| Name: | Xxxxxxx
X. Xxxxx |
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| Title: | Senior
Vice President |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| SUNTRUST BANK | ||||
| By: | /s/
Xxx Xxxxxxxxx |
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| Name: | Xxx
Xxxxxxxxx |
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| Title: | Vice
President |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| U.S. BANK NATIONAL ASSOCIATION | ||||
| By: | /s/
Xxxxx Xxxxxxxx |
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| Name: | Xxxxx
Xxxxxxxx |
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| Title: | Assistant
Vice President |
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| WACHOVIA BANK, N.A. | ||||||
| By: | /s/
Xxxxx X. Xxxxxxx |
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| Name: | Xxxxx
X. Xxxxxxx |
|||||
| Title: | Sr.
Vice President
|
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[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
Each of the undersigned hereby acknowledges and consents to the foregoing Amendment and confirms
and agrees that the Guaranty executed by it (including via joinder or supplement) in connection
with the Credit Agreement remains in full force and effect in accordance with its terms and is
hereby reaffirmed and ratified by each of the undersigned, and each of the undersigned hereby
confirms that the representations and warranties contained in each such Guaranty (including any
incorporated by reference to the Credit Agreement) are (before and after giving effect to this
Amendment) true and correct in all material respects.
| AMERICAN COMMERCIAL LINES INC., a Delaware corporation |
||||
| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Sr. Vice President, General Counsel and Corporate Secretary | |||
| COMMERCIAL BARGE LINE COMPANY, a Delaware corporation |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| AMERICAN COMMERCIAL BARGE LINE LLC, a Delaware corporation |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| ACL FINANCE CORP., a Delaware corporation |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
| ACL PROFESSIONAL SERVICES INC., a Delaware corporation |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Secretary | |||
| XXXXXXX BAY DESIGN GROUP LLC, a Delaware limited liability company |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| SUMMIT CONTRACTING, LLC, an Indiana limited liability company |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| SUMMIT CIVIL SERVICES, LLC, an Indiana limited liability company |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| SUMMIT ENVIRONMENTAL SERVICES, LLC, an Indiana limited liability company |
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| By: | /s/
Xxxx X. Xxxxxx |
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| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
[Signature Page to Amendment No. 5 to Credit Agreement — ACL]
EXHIBIT J
UPDATED COMPLIANCE CERTIFICATE
(See Attached)
EXHIBIT J
COMPLIANCE CERTIFICATE
, 20__
COMPLIANCE CERTIFICATE
, 20__
Xxxxx Fargo Bank, National Association,
as Administrative Agent
000 X. Xxxxxxxx Xx., Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Vice President
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
as Administrative Agent
000 X. Xxxxxxxx Xx., Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Vice President
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
This Compliance Certificate is delivered pursuant to Section 5.01(a)(iii) of that
certain Credit Agreement, dated as of April 27, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among (1) American
Commercial Lines LLC, a Delaware limited liability company (“ACL”), Jeffboat LLC, a
Delaware limited liability company (“Jeffboat”), and ACL Transportation Services LLC, a
Delaware limited liability company (formerly known as Louisiana Dock Company LLC) (“ACLTS”;
and together with ACL and Jeffboat, each a “Borrower” and collectively, the
“Borrowers”); (2) each of the financial institutions party thereto from time to time
(collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association, as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as
Security Trustee, as Lead Arranger, as L/C Issuer and as Swing Line Lender.
Terms defined in the Credit Agreement and not otherwise defined in this Compliance Certificate
(this “Compliance Certificate”) shall have the meanings defined for them in the Credit
Agreement. Section references herein relate to the Credit Agreement unless stated otherwise. In
the event of any conflict between the calculations set forth in this Compliance Certificate and the
manner of calculation required by the Credit Agreement, the terms of the Credit Agreement shall
govern and control.
This Compliance Certificate is delivered in accordance with Section 5.01(a)(iii) of
the Credit Agreement by an undersigned Responsible Officer of each Borrower, in each undersigned’s
capacities as such and not his or her individual capacity, on behalf of such Borrower. This
Compliance Certificate is delivered for the fiscal quarter (the “Test Period”) ended
, (the “Test Date”). Computations indicating compliance with respect to
the covenants in Sections 5.01(i), 5.02(a), 5.02(d), 5.02(e) and 5.03 of the Credit
Agreement are set forth below:
1. Section 5.01(i) – Updated Schedules for new Subsidiaries.
During the fiscal quarter ended on the Test Date, no Loan Party has reorganized,
recapitalized or consolidated with or merged into any other Person or permitted any other Person to
merge into it, acquired any Person as a new Subsidiary or acquired all or substantially all of the
assets of any other Person, except as described below:
1
During the Test Period, if any Loan Party established or acquired any new Domestic
Subsidiary, any new Foreign Subsidiary or any new Equity Securities of any existing Subsidiary,
please attach a written supplement to Schedule 4.01(o). Applicable during the Test Period? Yes
No
2. Section 5.02(a) – Indebtedness.
(a) Section 5.02(a)(vii). The principal amount of purchase money Indebtedness
and Capital Lease obligations of the Loan Parties is $ . The principal amount of
such Indebtedness shall not exceed and since the Closing Date has never exceeded
$50,000,000.
(b) Section 5.02(a)(ix). The principal amount of Maritime Administration
Financing Indebtedness and other additional Indebtedness (as described in Section
5.02(a)(ix) of the Credit Agreement) of the Loan Parties is $ . The principal amount
of such Indebtedness shall not exceed and since the Closing Date has never exceeded
$25,000,000.
3. Section 5.02(d) – Mergers, Acquisitions, etc.
As of the Test Date, all acquisitions by the Loan Parties were consummated in accordance with
Section 5.02(d) of the Credit Agreement and the Borrowers have delivered to the Administrative
Agent all information required to be delivered pursuant to Section 5.02(d) of the Credit Agreement.
4. Section 5.02(e) – Investments.
(a) As of the Test Date, Investments (including
any loans or advances) by Loan Parties made
directly or indirectly in the aggregate for
all Foreign Subsidiaries are $ .
Such Investments may not exceed, and have
never exceeded since the Closing Date
$30,000,000 in the aggregate at any one time
for all Foreign Subsidiaries.
(b) As of the Test Date, Investments by the
Borrowers and their Domestic Subsidiaries in
Joint Ventures which are organized under the
laws of the United States of America or any
state thereof in an aggregate amount (valued
at cost) are as follows as to each such Joint
Venture:[name of JV]:
$ [add more references as needed]. Such Investments are
not to exceed, and since the Closing Date
2
have
never exceeded (i) $50,000,000 as to any
single Joint Venture which is organized under
the laws of the United States of America or
any state thereof or (ii) $100,000,000 as to
all such Joint Ventures since the date of the
Credit Agreement. Those Investments that were
made after the “Amendment Effective Date” of
and as defined in the Amendment No. 5 To
Credit Agreement were made in compliance with
Section 5.02(e)(v) of the Credit Agreement
including the requirement that the Total
Leverage Ratio is less than 2.75 to 1.00 as
reflected in the most recently delivered
Compliance Certificate required by the Credit
Agreement at the time such Investment was made
and on a pro forma basis for any such
Investment(s) (such pro forma calculation made
using the Total Debt as of the date of such
Investment and after giving effect to any such
Investment and the Adjusted EBITDA for the
four quarter period reflected in such recently
delivered Compliance Certificate).
(c)
As of the Test Date, loans and advances to
employees in the ordinary course of business
and in accordance with past practices were
$ in the aggregate. Such
Investments may not exceed, and have never
exceeded since the Closing Date $5,000,000
in the aggregate at any one time.
(d) As of the Test Date, additional Investments
(as contemplated by Section 5.02(e)
of the Credit Agreement) were $_____ in the aggregate. Such Investments may not
exceed, and have never exceeded since the
Closing Date $5,000,000 in the aggregate at
any one time.
5. Section 5.03(a) – Total Leverage Ratio. As of the Test Date, the Total Leverage Ratio
was ___:1.00. The maximum permitted Leverage Ratio is 3.75:1.00.
The Total Leverage Ratio as of the Test Date was computed as follows:
(a) Total Debt on a consolidated
basis on the Test Date
(i) All obligations of the Loan Parties evidenced by notes,
bonds, debentures or other similar instruments and all other
obligations of the Loan Parties for borrowed money (including
obligations to repurchase receivables and other assets sold
with recourse) (other than Revolving Loans and L/C
Obligations)
|
$ |
|
(ii) All obligations of the Loan Parties for the deferred
purchase price of property or services (including obligations
under letters of credit and other credit facilities which
secure or finance such purchase price), except for accounts
payable arising in the ordinary course of business that are
payable on terms customary in the trade
|
$ |
3
(iii) All obligations of the Loan Parties under conditional
sale or other title retention agreements with respect to
property acquired by the Loan Parties (to the extent of the
value of such property if the rights and remedies of the
seller or the lender under such agreement are limited solely
to repossession or sale of such property)
|
$ |
|
(iv) All obligations of the Loan Parties as lessee under or
with respect to Capital Leases and synthetic leases
|
$ |
|
(v) All obligations of the Loan Parties, contingent or
otherwise, under or with respect to Surety Instruments
|
$ |
|
(vi) All net obligations of the Loan Parties, contingent or
otherwise, under or with respect to Rate Contracts on a
marked to market basis;
|
$ |
|
(vii) All Unfunded Pension Liabilities of the Loan Parties
|
$ |
|
(viii) All obligations of the Loan Parties with respect to
letters of credit, whether drawn or undrawn, contingent or
otherwise
|
$ |
|
(ix) All Guaranty Obligations of the Loan Parties with
respect to the obligations of other Persons of the types
described in clauses (i) — (vii) above and all other
Contingent Obligations of the Loan Parties
|
$ |
|
(x) All obligations of other Persons of the types described
in clauses (i) — (ix) above to the extent secured by (or for
which any holder of such obligations has an existing right,
contingent or otherwise, to be secured by) any Lien on any
property (including accounts and contract rights) of the Loan
Parties, even though the Loan Parties have not assumed or
become liable for the payment of such obligations.
|
$ |
4
provided that Indebtedness of a Joint Venture that is not a wholly-owned
Subsidiary shall be included at the amount of the Indebtedness of such
Joint Venture times the Loan Parties’ percentage ownership interest of
any such Joint Venture (the “Equity Adjusted Amount”) unless there is
recourse to one or more Loan Parties in respect of such Indebtedness, in
which case such Indebtedness shall be included at an amount equal to the
greater of (A) the Equity Adjusted Amount and (B) the maximum amount of
such recourse (which shall be 100% of such Indebtedness if no maximum
amount of recourse is stated)).
|
See Attached Schedule A for calculation of adjustments required by this proviso |
(a)
– Total Debt - equals [Sum, without duplication, of (i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)+(ix)+(x)] |
$ |
|
Divided by: |
||
(b) Adjusted EBITDA of the Loan Parties for the four consecutive fiscal
quarter period ending on the Test Date (the “Annual Period”) |
||
(i) Net Income for the Annual Period
|
$ |
|
(ii) Interest Expense for the Annual
Period
|
$ |
|
(iii) Expense for income taxes for the
Annual Period
|
$ |
|
(iv) Depreciation and amortization for
the Annual Period
|
$ |
|
(v) Non-recurring costs or expenses
incurred during the Annual Period with
respect to a permitted financing or
refinancing, Permitted Acquisition or
other acquisition approved by the
Required Lenders
|
$ |
|
(vi) An amount equal to the non-cash,
share-based compensation deducted in
accordance with SFAS 123 for the Annual
Period
|
$ |
|
(vii) Extraordinary non-cash losses or
charges for the Annual Period (including
non-cash transaction expenses, the
amortization of debt discounts, losses
from impairment of tangible or intangible
assets, translation gains or losses)
|
$ |
|
(viii) Additional add backs as may be
agreed to in writing by the
Administrative Agent (in its sole
discretion without the consent of the
Required Lenders
|
$ |
5
for any such additional
add backs up to $5,000,000 in the
aggregate, and otherwise with the consent
of the Required Lenders in their
reasonable discretion)) |
||
(ix) Extraordinary gains realized during
the Annual Period
|
$ |
|
(x) Any non-cash income or non-cash gains
during the Annual Period, all calculated for the Loan Parties on a consolidated basis, in accordance with GAAP |
$ |
provided that Adjusted EBITDA of a Joint Venture that
is not a wholly-owned Subsidiary shall be included at
the amount of the Adjusted EBITDA of such Joint
Venture times the Loan Parties’ percentage ownership
interest of any such Joint Venture
|
See Attached Schedule B for calculation of adjustments required by this proviso | |
Items (ii) through (viii) are included to the extent
deducted in determining such Net Income for the
Annual Period (without duplication). |
||
Items (ix) and (x) are included to the extent added
in determining such Net Income for the Annual Period
(without duplication). |
equals
(b) – Adjusted EBITDA [(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)-(ix)-(x)] |
$ |
|
Total Leverage Ratio = [(a) ¸(b)] |
: 1.00 |
6. Section 5.03(b) – Fixed Charge Coverage Ratio. As of the Test Date, the Fixed Charge
Coverage Ratio was ___:1.00. The minimum permitted Fixed Charge Coverage Ratio is 1.25:1.00 as
of the Test Date.
The Fixed Charge Coverage Ratio as of the Test Date was computed as follows:
(a) Adjusted EBITDA of the Loan Parties for the four
consecutive fiscal quarter period ending on the Test Date (the
“Annual Period”) as calculated in Section 5(b) above
|
$ |
|
(b) Operating lease expenses of the Borrowers
and their Subsidiaries paid during the Annual
Period
|
$ |
|
6
(c) The aggregate amount of all Maintenance
Capital Expenditures made during the Annual
Period
|
$ |
|
(d) Cash taxes required to be paid by a Loan
Party during the Annual Period
|
$ |
|
(e) The aggregate amount of all Distributions
made during the Annual Period
|
$ |
|
(f) Distributions to Parent made during the
Annual Period (up to $350,000,000 in the
aggregate for all Annual Periods) which were
used for the purchase of the stock of Parent pursuant to the Permitted Stock Purchase
Program and the August 2007 Permitted Stock
Purchase Program to the extent permitted by the
Credit Agreement during the Annual Period
|
$ |
|
| (not to exceed $350,000,000 in the aggregate for all Annual Periods) | ||
(g) Adjusted amount of Distributions made
during the Annual Period [(e)-(f)]
|
$ |
|
(h)
Numerator for Fixed Charge Coverage Ratio [(a)+(b)-(c)-(d)-(g)] |
$ |
|
Divided by |
||
(i) Fixed Charges for the Annual Period: |
||
(i) Cash Interest Expense for the Annual
Period |
$ |
|
(ii) Payments of principal on Indebtedness
scheduled or required to be paid during the
Annual Period |
$ |
|
(iii) The portion of payments, other than
optional payments, made under Capital
Leases that should be treated as payment of
principal in accordance with GAAP required
to be paid during the Annual Period |
$ |
|
(iv) Operating lease expenses of the
Borrowers and their Subsidiaries paid
during the Annual Period |
$ |
|
equals (i) – Fixed Charges [(i)+(ii)+(iii)+(iv)] |
$ |
|
Fixed
Charge Coverage Ratio equals
[(h)¸(i)] |
:1.00 | |
7. Section 5.03(c) – Minimum Net Worth. As of the Test Date, Net Worth is
$ . As of the Test Date, the minimum required amount of Net Worth is
$ . |
||
7
The minimum required amount of Net Worth as of the Test Date was computed as follows:
(a) $304,854,704.35
|
$ | 304,854,704.35 | |||
(b) Fifty percent (50%) of the cumulative
sum of the Loan Parties’ annual
consolidated Net Income for each fiscal
quarter of the Borrowers ending after
December 31, 2006 through and including
the fiscal year ending immediately prior
to the Test Date (excluding any quarter in
which net income is negative)
|
$ |
||||
(c) One-hundred percent (100%) of the Net
Proceeds from the issuance of Equity
Securities by Parent or any other Loan
Party the proceeds of which are received
from a Person that is not a Loan Party
from and after December 31, 2006
|
$ |
||||
(d) The aggregate decrease in Net Worth
directly resulting from the purchase of
the stock of Parent pursuant to the
Permitted Stock Purchase Program
|
$ |
||||
(e) Adjusted Net Worth Decrease Amount
(Permitted Stock Purchase Program)
[(d) x 0.85]
|
$ |
||||
(f) The aggregate decrease in Net Worth
directly resulting from the purchase of
the stock of Parent pursuant to the August
2007 Permitted Stock Purchase Program
|
$ |
||||
(g) Adjusted Net Worth Decrease Amount
(August 2007 Permitted Stock Purchase
Program)
[(f) x 0.85]
|
$ |
||||
(f) Minimum required Net Worth [(a)+(b)+(c)-(e)-(g)] |
$ |
||||
8. No Default. During the fiscal quarter ending on the Test Date, no Default or Event of
Default has occurred and is continuing, with the exceptions set forth below in response to which
the Borrowers have taken (or caused to be taken) or proposes to take (or cause to be taken) the
following actions (if none, so state).
|
|||||
[This Space Intentionally Left Blank]
8
Each of the undersigned, Responsible Officers of the Borrowers, in their capacity
as such and not in their individual capacities, on behalf of the Borrowers certifies that the
calculations made and the information contained herein are derived from the books and records of
the Borrowers and that each and every matter contained herein correctly reflects those books and
records.
| Dated: , 20___ | ||||
| BORROWERS: | ||||
| AMERICAN COMMERCIAL LINES LLC, a Delaware limited liability company |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| JEFFBOAT LLC, a Delaware limited liability company |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ACL TRANSPORTATION SERVICES LLC, a Delaware limited liability company (formerly known as Louisiana Dock Company LLC) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
9
