CONSENT AGREEMENT
This CONSENT AGREEMENT (the "Agreement"), dated as of December 23, 2015, is entered into among INTERNATIONAL SHIPHOLDING CORPORATION, a Delaware corporation ("ISC"), ENTERPRISE SHIP COMPANY, INC., a Delaware corporation ("Enterprise"), SULPHUR CARRIERS, INC., a Delaware corporation ("Sulphur Carriers"), CG RAILWAY, INC., a Delaware corporation ("CG Railway"), CENTRAL GULF LINES, INC., a Delaware corporation ("Central Gulf'), XXXXXXXX STEAMSHIP CORPORATION, a New York corporation ("Xxxxxxxx"), COASTAL CARRIERS, INC., a Delaware corporation ("Coastal"), X.X. XXXXXXX & CO., INC., a New York corporation ("NWJ"), LMS SHIPMANAGEMENT, INC., a Louisiana corporation ("LMS"), U.S. UNITED OCEAN SERVICES, LLC, a Florida limited liability company ("UOS"), XXXX XXX XXXXXX, LLC, a Delaware limited liability company ("MAH"), XXXXXX XXXXXXXX, LLC, a Delaware limited liability company ("XXX"), TOWER, LLC, an Alabama limited liability company ("Tower"), FRASCATI SHOPS, INC., an Alabama corporation ("Frascati"; ISC, Enterprise, Sulphur Carriers, CG Railway, Central Gulf, Xxxxxxxx, Coastal, NWJ, LMS, UOS, XXX, XXX, Tower and Frascati, collectively, the "Borrowers"), the Lenders party hereto and REGIONS BANK, as administrative agent (in such capacity, "Administrative Agent") and collateral agent (in such capacity, "Collateral Agent"). All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement and in the Sixth Amendment (as such terms are defined below).
RECITALS
WHEREAS, the Borrowers, the Lenders and the Administrative Agent entered into that certain Credit Agreement dated as of September 24, 2013 (as amended or modified from time to time, the "Credit Agreement");
WHEREAS, the Borrowers, the Lenders and the Administrative Agent entered into that certain Waiver Agreement, Consent and Sixth Amendment to Credit Agreement dated as of November 13, 2015 (the "Sixth Amendment"), pursuant to which the Lenders provided their consent to certain Assets Sales comprising the Collateral and the Borrowers agreed to complete certain Asset Sales of Collateral upon specific terms;
WHEREAS, the Borrowers have requested that the Required Lenders consent to revising the terms and conditions upon which some of such Asset Sales are completed;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.Modified Terms for Disposition of Intermarine Contracts. With respect to the
Required Lenders' consent to the disposition of the Intermarine Contracts set forth in section 3.6 of the Sixth Amendment, and the requirements for the disposition of the Intermarine Contracts set forth in section 5.2(c) of the Sixth Amendment, the Borrowers and the Required Lenders agree to the following revised terms:
(i)Xxxxxxxx shall complete the disposition of two of the Intermarine Contracts by
no later than January 25, 2016 for aggregate Net Cash Proceeds of at least $6,000,000, and Xxxxxxxx shall use its commercially reasonable best efforts to complete the disposition of the third Intermarine Contract by February 20, 2016 for Net Cash Proceeds of at least $3,000,000;
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(ii) 100% of the aggregate Net Cash Proceeds of the disposition of the two Intermarine Contracts shall be paid in three installments: (a) $3,000,000 of such proceeds shall be paid to the Collateral Agent by November 6, 2015 (which payment was timely made), (b) $2,000,000 of such proceeds shall be paid to the Collateral Agent on the earlier of (1) the sale or other disposition of the Glovis Countess and (2) December 31, 2015, and (c) the final $1,000,000 of such proceeds shall be paid by January 25, 2016; and |
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(iii) the Net Cash Proceeds for the disposition of the third Intermarine Contract, if any, shall be paid to the Collateral Agent upon receipt by Xxxxxxxx or any other Borrower. |
Sections 3.6(a) and (b) of the Sixth Amendment shall continue to apply with regard to the Required Lenders' consent to the disposition of the Intermarine Contracts. All such Net Cash Proceeds from the disposition of the Intermarine Contracts paid to the Collateral Agent shall be applied to prepay the Term Loan A in accordance with Section 2.12(b)(ii) of the Credit Agreement.
Section 2.Modified Terms for Disposition of the Vessels Xxxxx Xxxxx and Xxxxx Xxxxxx.
With respect to the Required Lenders' consent to the disposition of the vessels Xxxxx Xxxxx and Xxxxx Xxxxxx set forth in section 3.4 of the Sixth Amendment, and the requirements for the disposition of such vessels in section 5.2(a) of the Sixth Amendment, the Borrowers and the Required Lenders agree to the following revised terms:
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(i) UOS shall sell the barge Xxxxx Xxxxxx by not later than December 29, 2015 for Net Cash Proceeds of at least $160,000; |
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(ii) UOS shall sell the tug Xxxxx Xxxxx by not later than February 28, 2016 for Net Cash Proceeds of at least $485,000; and |
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(iii) all Net Cash Proceeds from the disposition of the Xxxxx Xxxxx and Xxxxx Xxxxxx shall be paid directly to the Collateral Agent to effect release of its Liens on such vessels. |
Sections 3.4(a) and (b) of the Sixth Amendment shall continue to apply with regard to the Required Lenders' consent to the disposition of the Naida Rama and Xxxxx Xxxxxx. All such Net Cash Proceeds from the disposition of such vessels paid to the Collateral Agent shall be applied to prepay the Term Loan in accordance with Section 2.12(b)(ii) of the Credit Agreement.
Section 3.Modified Terms for Disposition of the Assets of FSI. With respect to the
Required Lenders' consent to the sale by Frascati Shops, Inc. and Tower, LLC (collectively, "FSI") of all assets and properties of FSI set forth in section 3.5 of the Sixth Amendment, and the requirements for the disposition of the assets of FSI set forth in section 5.2(b) of the Sixth Amendment, the Borrowers and the Required Lenders agree to the following revised terms:
FSI shall complete the disposition of all of its assets and properties by no later than January 25, 2016 for aggregate Net Cash Proceeds of at least $3,700,000, and all such Net Cash Proceeds shall be paid directly to the Collateral Agent to effect release of its Liens on such assets.
Sections 3.5(a) and (b) of the Sixth Amendment shall continue to apply with regard to the Required Lenders' consent to the disposition of such assets of FSI. All such Net Cash Proceeds from the
disposition of such assets of FSI paid to the Collateral Agent shall be applied to prepay the Term Loan in accordance with Section 2.12(b)(ii) of the Credit Agreement.
Section 4.Limited Effect of Modifications. Except as expressly provided herein, the
consents and modifications set forth herein shall not modify or affect the Loan Parties' obligations to comply fully with the other duties, terms, conditions and covenants contained in the Credit Agreement, the Sixth Amendment, and the other Credit Documents, now or in the future. This Agreement is limited solely to the matters expressly provided herein, and nothing contained in this Agreement shall be deemed to constitute a consent, release or waiver of any other duty, term, condition or covenant contained in the Credit Agreement, the Sixth Amendment or any other Credit Document with respect to any matter or any other rights or remedies the Administrative Agent, the Collateral Agent or any Lender may have under the Credit Agreement, the Sixth Amendment or any other Credit Documents or under applicable law.
Section 5.Effectiveness. This Agreement shall be effective upon the Administrative
Agent's receipt, by no later than December 22, 2015, counterparts of this Agreement duly executed by the Borrowers, the Required Lenders and the Administrative Agent.
Section 6.Other Lenders' Consents. By January 20, 2016, the Borrowers shall obtain (and
provide copies to the Administrative Agent of) parallel written consents (the "Other Lenders' Consents") from each holder of the Other Designated Indebtedness for which the applicable governing documents require (i) the disposition of the Intermarine Contracts for a specified amount by a date certain, (ii) the sale of the Xxxxx Xxxxx and Xxxxx Xxxxxx vessels for the respective specified amounts by respective dates certain, and/or (iii) the sale of the assets of FSI for a specified amount by a date certain, such Other Lenders' Consents to be in form and substance satisfactory to the Administrative Agent. No such consent or any related agreement may contain or require as a condition to such consent the payment by any Borrower or their respective Subsidiaries of any fee, other amount or other additional consideration (or the acceleration of the date for payment of any existing fee, other amount or other consideration) to any of the holders of the Other Designated Indebtedness.
Section 7.Representations of the Borrowers. Each of the Borrowers represents and
warrants to the Administrative Agent and the Lenders as follows:
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(a) It has taken all necessary action to authorize the execution, delivery and performance of this Agreement and any other documents delivered by it in connection herewith. |
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(b) This Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). |
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(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by it of this Agreement. |
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(d) The execution and delivery of this Agreement or any other document delivered by it in connection herewith does not (i) violate, contravene or conflict with any provision of its |
organization documents or (ii) materially violate, contravene or conflict with any laws applicable to it.
(e)After giving effect to this Agreement, (i) the representations and warranties of
the Borrowers set forth in the Credit Agreement and in each other Credit Document are true, accurate and complete in all material respects on and as of the date hereof to the same extent as though made on and as of such date except to the extent such representations and warranties specifically relate to an earlier date and (ii) no event has occurred and is continuing which constitutes a Default or Event of Default.
Section 8.Miscellaneous.
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(a) The Credit Agreement and the obligations of the Borrowers thereunder and under the other Credit Documents, as modified hereby, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement shall constitute a Credit Document. |
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(b) Each Borrower (a) acknowledges and consents to all of the terms and conditions of this Agreement, (b) affirms all of its obligations under the Credit Documents as modified hereby and (c) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Credit Documents except as expressly set forth herein. |
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(c) Each of the Borrowers, on behalf of its respective directors, officers, shareholders, employees, attorneys, successors, assigns and representatives, hereby releases the Administrative Agent, the Collateral Agent and each Lender and their respective affiliates, directors, officers, shareholders, employees, attorneys, consultants, successors and assigns and representatives (collectively, the "Released Parties") from the following, whether arising from or in connection with any of the Obligations, this Agreement or any of the Credit Documents or otherwise prior to the Effective Date: (i) damages, claims, liabilities, causes of action, contracts, or controversies of any type, kind, nature, description or character; (ii) breaches of contract or duty of any other type of relationship; (iii) acts or omissions, misfeasance or malfeasance; and (iv) commitments or promises of any type made prior to the date hereof (the matters described in the preceding clauses (i) through (iv) being referred to collectively as the "Claims"), whether or not the Claims are liquidated or unliquidated, which in any way arise out of, or relate to, the Credit Documents or any failure of any of the Released Parties to honor any prior commitment or any documents, agreements or other instruments in any way related to the Credit Documents. |
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(d) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered. |
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(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. |
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
Borrowers:
INTERNATIONAL SHIPHOLDING CORPORATION
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
ENTERPRISE SHIP COMPANY
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
SULPHER CARRIERS, INC.
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
C G RAILWAY, INC.
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
CENTRAL GULF LINES, INC
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
XXXXXXXX STEAMSHIP CORPORATION
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
COASTAL CARRIERS, INC
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
X. X. Xxxxxxx & CO., INC.
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
LMS SHIPMANAGEMENT, INC.
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
U.S. UNITED OCEAN SERVICES, LLC
BY: COASTAL CARRIERS, INC., its sole member
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
XXXX XXX XXXXXX, LLC
BY: U.S. United Ocean Services, LLC, its sole member
BY: Coastal Carriers, INC., its sole member
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
XXXXXX XXXXXXXX, LLC
BY: U.S. United Ocean Services, LLC, its sole member
BY: Coastal Carriers, INC., its sole member
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
TOWER, LLC
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Authorized Representative
FRASCATI SHOPS, INC
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Vice President – Treasurer
ADMINISRTATIVE AGENT
AND COLLATERAL AGENT
REGIONS BANK, as administrative agent and Collateral Agent
By: /s/ N. Xxxxxx Xxxxxx III
Name: N. Xxxxxx Xxxxxx III
Title: Senior Vice President
LENDERS:
As a Lender
REGIONS BANK
By: /s/ N. Xxxxxx Xxxxxx III
Name: N. Xxxxxx Xxxxxx III
Title: Senior Vice President
BRANCH BANKING AND TRUST COMPANY,
By: /s/ Xxxx XxXxxxxx
Name: Xxxx XxXxxxxx
Title: Senior Vice President
CAPITAL ONE, N. A.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
