FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.3
EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 7,
2011, is entered into by and among AMERICAN COMMERCIAL LINES INC. (“Parent”), COMMERCIAL
BARGE LINE COMPANY (“CBL”), AMERICAN COMMERCIAL LINES LLC (“ACL”), ACL
TRANSPORTATION SERVICES LLC (“ACLTS”) and JEFFBOAT LLC (“Jeffboat”; together with
CBL, ACL and ACLTS, are referred to hereinafter each individually as a “Borrower”, and
individually and collectively, jointly and severally, as the “Borrowers”), the other Loan
Parties hereto, the lenders signatory hereto and XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware
limited liability company, as administrative agent (in such capacity, together with its successors
and permitted assigns in such capacity, “Agent”) for the Lenders (as defined below).
RECITALS
A. Parent, Borrowers, the lenders party thereto from time to time (the “Lenders”) and Agent,
have previously entered into that certain Credit Agreement dated as of December 21, 2010 (as the
same may be modified, supplemented or amended from time to time, the “Credit Agreement”), pursuant
to which the Lenders have made certain loans and financial accommodations available to Borrowers.
Terms used herein without definition shall have the meanings ascribed to them in the Credit
Agreement.
B. Parent and Borrowers have requested that Agent and the Lenders amend the Credit Agreement
which Agent and the Lenders are willing to do pursuant to the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendments to Credit Agreement.
(a) Clause (d) of Section 6.9 to the Credit Agreement is hereby amended by and restated in its
entirety to read as follows:
“(d) At any time after each of the Put Obligations Block and the Interim Block have
been reduced to $0, Parent may make a one-time distribution or other payment (and Borrowers
and their Subsidiaries may make a one-time distribution or other payment to Parent for the
sole purpose of allowing Parent to make such one-time distribution or other payment) to
Permitted Holders or any Permitted Holder’s Affiliates, so long as both before and after
giving effect to any such distribution or other payment: (i) the Loan Parties believe in
good faith that, on a pro forma basis immediately after
giving effect to such distribution or other payment that they shall have projected
Availability for the 90 day period immediately after making such distribution or other
payment of no less than $100,000,000, (ii) the Parent has, on a pro forma basis immediately
after giving effect to such distribution, a First Lien Leverage Ratio of not more than 3.25
to 1.0, (iii) no Default or Event of Default shall have occurred and be continuing or would
result therefrom; and (iv) at least 30% of the pro forma consolidated equity and debt
capitalization of Parent and its Subsidiaries (calculated to include all fees and expenses
incurred in connection with the amendment of the Existing Indenture after the date hereof or
the repayment of any obligations under the Existing Indenture after the date hereof,
including, without limitation, all fees and expenses incurred in connection with any
financing used to refinance the Existing Indenture) consists of equity contributions of
Permitted Holders and their Affiliates (other than Parent and its Subsidiaries),”
(b) Clause (i) of Section 6.9 to the Credit Agreement is hereby amended by and restated in its
entirety to read as follows:
“(i) on or after January 1, 2011, Parent may make one-time quarterly distributions or
other payments (and Borrowers and their Subsidiaries may make one-time quarterly
distributions or other payments to Parent for the sole purpose of allowing Parent to make
such onetime quarterly distributions or other payments) to Permitted Holders and their
Affiliates in an amount not to exceed $65,000,000 in the aggregate during any calendar year,
so long as (i) the Loan Parties have, for the 30 day period immediately prior to making any
such distribution or other payment, Average Daily Availability of not less than
$100,000,000, (ii) the Loan Parties have Availability of not less than $100,000,000
immediately after giving effect to any such distribution or other payment, no Default or
Event of Default shall have occurred and be continuing or would result therefrom the Parent,
on a pro forma basis immediately after giving effect to any such distribution or other
payment, a First Lien Leverage Ratio of not more than 3.25 to 1.0, and (v) the Parent has,
on a pro forma basis after giving effect to any such distribution or other payment, a Fixed
Charge Coverage Ratio (calculated on trailing twelve month basis recomputed for the most
recent month for which financial statements have been delivered) of not less than 1.2 to
1.0,”
(c) Section 14.1(a) is hereby amended by replacing the “.” at the end thereof with “;” and
inserting the following new proviso at the end of such subsection:
“provided, further, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by Lenders whose aggregate Pro Rata Shares
(calculated under clause (c) of the definition of Pro Rata Shares) exceeds 662/3%, Agent and
Administrative Borrower, amend, modify, or eliminate any of the provisions of Section
6.9.”
2. This Amendment shall not become effective until all of the following conditions precedent
shall have been satisfied in the sole discretion of Agent or waived by Agent:
(a) Amendment. Agent shall have received this Amendment fully executed.
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(b) Representations and Warranties. The representations and warranties set forth
herein and in the Credit Agreement (other than any such representations or warranties that, by
their terms, are specifically made as of a date other than the date hereof) must be true and
correct in all material respects.
3. Representations and Warranties. Parent and each Borrower represents and warrants as
follows:
(a) Authority. Each has the requisite corporate or limited liability company (as
applicable) power and authority to execute and deliver this Amendment, and to perform its
obligations hereunder and under the Loan Documents (as amended or modified hereby) to which it is a
party. The execution, delivery and performance by Parent and each Borrower of this Amendment have
been duly approved by all necessary corporate or limited liability company action (as applicable).
(b) Enforceability. This Amendment has been duly executed and delivered by Parent and
each Borrower. This Amendment and each Loan Document (as amended or modified hereby) is the legal,
valid and binding obligation of Parent and each Borrower, enforceable against Parent and each
Borrower in accordance with its terms, except as enforcement may be limited by equitable principles
or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally, and is in full force and effect.
(c) Representations and Warranties. The representations and warranties contained in
each Loan Document (other than any such representations or warranties that, by their terms, are
specifically made as of a date other than the date hereof) are true and correct in all material
respects on and as of the date hereof as though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that constitutes a Default or
Event of Default.
4. Choice of Law. The validity of this Amendment, the construction, interpretation,
and enforcement hereof, and the rights of the parties hereto with respect to all matters arising
hereunder or related hereto shall be determined under, governed by, and construed in accordance
with the laws of the State of New York.
5. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties and separate counterparts, each of which when so executed and delivered, shall be
deemed an original, and all of which, when taken together, shall constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page to this Amendment by
telefacsimile or other electronic method of transmission shall be equally as effective as delivery
of an original executed counterpart of this Amendment. Any party delivering an executed counterpart
of this Amendment by telefacsimile or other electronic method of transmission shall also deliver an
original executed counterpart of this Amendment but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and binding effect of this Amendment.
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6. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, “hereof’ or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereof’ or
words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified and amended hereby.
(b) Except as specifically set forth in this Amendment, the Credit Agreement and all other
Loan Documents, are and shall continue to be in full force and effect and shall constitute the
legal, valid, binding and enforceable obligations of Parent and each Borrower to Agent and Lenders
without defense, offset, claim or contribution.
7. Ratification. Parent and each Borrower hereby restates, ratifies and reaffirms each
and every term and condition set forth in the Credit Agreement, as amended hereby, and the Loan
Documents effective as of the date hereof.
8. Integration. This Amendment, together with the other Loan Documents, incorporates
all negotiations of the parties hereto with respect to the subject matter hereof and is the final
expression and agreement of the parties hereto with respect to the subject matter hereof.
9. Severability. Each provision of this Amendment shall be severable from every other
provision of this Amendment for the purpose of determining the legal enforceability of any specific
provision.
10. Submission of Amendment. The submission of this Amendment to the parties or their
agents or attorneys for review or signature does not constitute a commitment by Agent or any Lender
to waive any of their respective rights and remedies under the Loan Documents, and this Amendment
shall have no binding force or effect until all of the conditions to the effectiveness of this
Amendment have been satisfied as set forth herein.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first
above written.
| COMMERCIAL BARGE LINE COMPANY, a Delaware corporation |
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| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Title: Vice President | ||||
| AMERICAN COMMERCIAL LINES LLC, a Delaware limited liability corporation |
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| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Title: Vice President | ||||
| ACL TRANSPORTATION SERVICES, LLC, a Delaware limited liability corporation |
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| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Title: Vice President | ||||
| JEFFBOAT LLC, a Delaware limited liability company |
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| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Title: Vice President | ||||
| AMERICAN COMMERCIAL LINES INC. A Delaware corporation |
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| By: | /s/ Xxxx Xxx Xxxxxx | |||
| Title: Vice President | ||||
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
| XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability corporation, as Agent, as Security Trustee, and a Lender |
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| By: | /s/ Xxx X. Xxxxxx | |||
| Title: Vice President | ||||
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
| UBS LOAN FINANCE LLC, as a Lender |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Title: Associate Director | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Title: Associate Director | ||||
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
| RBS BUSINESS CAPITAL, a Division of RBS ASSET FINANCE, INC., a Subsidiary of RBS CITIZENS, NA, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxx Xx. | |||
| Title: Senior Vice President | ||||
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
| SUNTRUST BANKS, INC., as a Lender |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Title: Senior Vice President | ||||
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
| FIRST MERIT BANK, N.A. as a Lender |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Title: Vice President | ||||
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
