Exhibit 10
[XXXXXXX(R) LOGO]
July 22, 2002
To the Administrative Agent and the Lenders
Party to the Credit Agreement Referred to Below
Re: $115 million Amended and Restated Credit Agreement dated as of November 2,
2001 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"; the terms defined therein,
unless otherwise defined herein, being used herein as therein defined)
among Xxxxxxx Maritime Corporation, as Borrower, the Lenders Parties party
thereto (the "LENDERS"), Citibank, N.A., as Issuing Bank and as Swing Line
bank, Citicorp USA, Inc., as Administrative Agent and as Collateral Agent
for the Lender Parties (the "ADMINISTRATIVE AGENT"), and Xxxxxxx Xxxxx
Xxxxxx Inc., as Arranger.
Ladies and Gentlemen:
Reference is made to MTL Petrolink Corporation ("PETROLINK") and its
operating lease commitments in the amount of $19,348,760 as reflected in the
undersigned's 2001 audited financial statements. Pursuant to Clause (ii)(A) of
the definition of "Net Debt" in Section 1.01 of the Credit Agreement ("NET
DEBT"), such operating lease commitments are included in the calculation of Net
Debt. The definition of Net Debt is defined, in pertinent part:
"as to the Borrower and its Consolidated Subsidiaries at any time, the
aggregate sum of (i) all Indebtedness (as reflected on the consolidated
balance sheet of the Borrower), (ii) 300% of the amount equal to (A)
the operating lease commitments shown in the footnotes to the most
recent audited financial statements delivered to the Lender Parties
pursuant to Section 5.01(a)(i) to be contractually due in the
subsequent fiscal year..." (emphasis added).
However, Petrolink's operating lease commitments, as a factual matter,
no longer exist due to the sale of Petrolink. Despite the absence of explicit
language of exclusion from Clause (ii)(A), we believe that it would be
reasonable, as a matter of complying with the operating lease commitments
included in the 2001 audited financial statement from the calculation of the
total Net Debt for the period from the date of the sale of Petrolink through the
end of the fiscal year 2002 (the "RELEVANT PERIOD"). In addition, in determining
compliance with the relevant financial covenants, we believe that it would be
reasonable to deduct from the calculation of EBITDA for the Relevant Period
Petrolink's contributions to EBITDA during the Relevant Period. The
Administrative Agent has indicated to the undersigned that it supports this
exclusion, subject, of course, to your approval.
XXXXXXX MARITIME CORPORATION-000 XXXXX XXXXXX-XXXXX 000-XXXXXXX, XXXXXXXXXX
00000-PHONE 510-251-7500-FAX 000-000-0000
xxx.xxxxxxx.xxx
1
Accordingly, we request your consent to waive the inclusion of
Petrolink's operating lease commitments in the calculation of Net Debt for the
Relevant Period by executing a copy of the attached consent (where indicated
below) and delivering same by fax to: Xxxxxx Xxx at Xxxxxxxx & Xxxxxxxx, fax
number (000) 000-0000, no later than 12:00PM, July 26, 2002.
Except as expressly provided herein, the waiver of the Lenders to the
inclusion of Petrolink's operating lease commitments shall not operate as a
waiver of any right, power or remedy of any Lender or Administrative Agent under
the Loan Documents, nor constitute a waiver of any provision of the Credit
Agreement. In addition, the Administrative Agent and the Lenders shall be fully
indemnified in connection herewith in accordance with Section 9.04(b) of the
Credit Agreement.
Regards,
XXXXXXX MARITIME CORPORATION
/s/ Xxxxxx X. Xxxxxxx
_____________________________
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT-TREASURER
2
CONSENT
The undersigned Lender hereby consents to the (i) exclusion of the
operating lease commitments of MTL Petrolink Corporation in the amount of
$19,348,760 included in the Borrower's 2001 audited financial statement from
the calculation of Net Debt, as defined in Section 1.01 of the Amended and
Restated Credit Agreement, dated as of November 2, 2001 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; the terms defined therein, unless otherwise defined herein, being
used herein as therein defined) among Xxxxxxx Maritime Corporation, as
Borrower, the Lenders Parties party thereto, Citibank, N.A., as Issuing Bank
and as Swing Line bank, Citicorp USA, Inc., as Administrative Agent and as
Collateral Agent for the Lender Parties, and Xxxxxxx Xxxxx Xxxxxx, Inc., as
Arranger, for the Relevant Period (as defined in the letter to which this
Consent is attached), and (ii) deduction from the calculation of EBITDA for the
Relevant Period Petrolink's contributions to EBITDA during the Relevant Period.
--------------------------
[Name of Xxxxxx]
/s/ Xxxx X. Xxxxxxx
--------------------------
By: [Stamp]
Title: XXXX X. XXXXXXX
DIRECTOR
NEW YORK SHIPPING & LOGISTICS
000 XXXXXXXXX XX./23RD PL.
TEL: 000-000-0000
FAX: 000-000-0000
CONSENT
The undersigned Lender hereby consents to the (i) exclusion of the
operating lease commitments of MTL Petrolink Corporation in the amount of
$19,348,760 included in the Borrower's 2001 audited financial statement from
the calculation of Net Debt, as defined in Section 1.01 of the Amended and
Restated Credit Agreement, dated as of November 2, 2001 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "Credit
Agreement": the terms defined therein, unless otherwise defined herein, being
used herein as therein defined) among Xxxxxxx Maritime Corporation, as
Borrower, the Lenders Parties party thereto, Citibank, N.A., as Issuing Bank
and as Swing Line bank, Citicorp USA, Inc., as Administrative Agent and as
Collateral Agent for the Lender Parties, and Xxxxxxx Xxxxx Xxxxxx Inc., as
Arranger, for the Relevant Period (as defined in the letter to which this
Consent is attached), and (ii) deduction from the calculation of EBITDA for the
Relevant Period Petrolink's contributions to EBITDA during the Relevant Period.
Nordea Bank
-----------------------------
Name of Lender
/s/ Xxxxxx Xxxxxx
-----------------------------
By: Xxxxxx Xxxxxx
Title: Senior Vice President
CONSENT
The undersigned Lender hereby consents to the (i) exclusion of the
operating lease commitments of MTL Petrolink Corporation in the amount of
$19,348,760 included in the Borrower's 2001 audited financial statement from the
calculation of Net Debt, as defined in Section 1.01 of the Amended and Restated
Credit Agreement, dated as of November 2, 2001 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein, unless otherwise defined herein, being
used herein as therein defined) among Xxxxxxx Maritime Corporation, as Borrower,
the Lenders Parties party thereto, Citibank, N.A., as Issuing Bank and as Swing
Line bank, Citicorp USA, Inc., as Administrative Agent and as Collateral Agent
for the Lender Parties, and Xxxxxxx Xxxxx Xxxxxx, Inc., as Arranger, for the
Relevant Period (as defined in the letter to which this Consent is attached),
and (ii) deduction from the calculation of EBITDA for the Relevant Period
Petrolink's contributions to EBITDA during the Relevant Period.
Landesbank Schleswig-Holstein
Girozentrale
-----------------------------
[NAME OF LENDER]
/s/ Xxxxxxx Xxxxx
------------------------------
By: Christian Book Xxxxxxx Xxxxx
Title: SVP VP
CONSENT
The undersigned Lender hereby consents to the (i) exclusion of the
operating lease commitments of MTL Petrolink Corporation in the amount of
$19,348,760 included in the Borrower's 2001 audited financial statement from
the calculation of Net debt, as defined in Section 1.01 of the Amended and
Restated Credit Agreement, dated as of November 2, 2001 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein, unless otherwise defined herein, being
used herein as therein defined) among Xxxxxxx Maritime Corporation, as
Borrower, the Lenders Parties party thereto, Citibank, N.A., as Issuing Bank
and as Swing Line bank, Citicorp USA, Inc. as Administrative Agent and as
Collateral Agent for the Lender Parties, and Xxxxxxx Xxxxx Xxxxxx Inc., as
arranger, for the Relevant Period (as defined in the letter to which this
Consent is attached), and (ii) deduction from the calculation of EBITDA for the
Relevant Period Petrolink's contributions to EBITDA during the Relevant Period.
DEN NORSKE BANK ASA
/s/ Xxxxxxx Xxxxxxxxx
--------------------------
By: XXXXXXX XXXXXXXXX
Title: SENIOR VICE PRESIDENT
DEN NORSKE BANK ASA
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
By: XXXXXXX X. XXXXXXXXX
Title: FIRST VICE PRESIDENT
CONSENT
The undersigned Lender hereby consents to the (i) exclusion of the
operating lease commitments of MTL Petrolink Corporation in the amount of
$19,348,760 included in the Borrower's 2001 audited financial statement from
the calculation of Net Debt, as defined in Section 1.01 of the Amended and
Restated Credit Agreement, dated as of November 2, 2001 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein, unless otherwise defined herein, being
used herein as therein defined) among Xxxxxxx Maritime Corporation, as
Borrower, the Lenders Parties party thereto, Citibank, N.A., as Issuing Bank
and as Swing Line bank, Citicorp USA, Inc., as Administrative Agent and as
Collateral Agent for the Lender Parties, and Xxxxxxx Xxxxx Xxxxxx, Inc., as
Arranger, for the Relevant Period (as defined in the letter to which this
Consent is attached), and (ii) deduction from the calculation of EBITDA for the
Relevant Period Petrolink's contributions to EBITDA during the Relevant Period.
Nedship Bank N.V.
--------------------------
[Name of Lender]
/s/ Y.A.F. Xxxxxx and X. X. Xxxxxxxx
------------------------------------
By: Y.A.F. Xxxxxx and X. X. Xxxxxxxx
Title: Insurance Manager and Senior Accounting Officer
