FOURTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT Agreement
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Fourth Amendment") is made and dated as of September 12, 1998
by and among AVONDALE INDUSTRIES, Inc., a Louisiana corporation (the "Company"),
the several financial institutions party hereto (the "Banks"), and Bank of
America National Trust and Savings Association, as agent for the Banks (in such
capacity, the "Agent"), and amends that certain Amended and Restated Revolving
Credit Agreement dated as of January 28, 1997 among the Company, the Banks and
the Agent, as amended by a First Amendment to Amended and Restated Revolving
Credit Agreement dated as of March 14, 1997, a Second Amendment to Amended and
Restated Revolving Credit Agreement dated as of April 30, 1997 and a Third
Amendment to Amended and Restated Revolving Credit Agreement and Request for
Release of Collateral dated as of October 24, 1997 (as so amended, the
"Agreement).
RECITAL
The Banks and the Agent desire to amend the Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Agreement unless otherwise defined herein. All references to the Agreement shall
mean the Agreement as hereby amended.
2. Amendments to Agreement. The parties agree that the Agreement shall
be amended as follows:
2.1 Section 7.7 of the Agreement is amended and restated in its
entirety as follows:
"Section 7.7 Limitation on Capital Expenditures. Incur Capital
Expenditures (excluding up to $40,000,000 in LPD-17 Expenditures)
which, in the aggregate for the Company and its Subsidiaries taken as a
whole, exceed (a) for the fiscal year ending December 31, 1998,
$35,000,000 and (b) for the fiscal year ending December 31, 1999 and
for each fiscal year thereafter, the sum of (i) $25,000,000 plus (ii)
the excess of $25,000,000 (or in the case of the fiscal year ending
December 31, 1999 only, $35,000,000) over sum of all such expenditures
of the Company and its Subsidiaries, taken as a whole, for the
preceding year; provided, however, that the unused amount permitted to
be carried forward shall not exceed $10,000,000 in any fiscal year."
3. Representations and Warranties. The Company represents and warrants
to Banks and the Agent that, on and as of the date hereof, and after giving
effect to this Fourth Amendment:
3.1 Authorization. The execution, delivery and performance of this
Fourth Amendment have been duly authorized by all necessary corporate action by
the Company and this Fourth Amendment has been duly executed and delivered by
the Company.
3.2 Binding Obligation. This Fourth Amendment is the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
3.3 No Legal Obstacle to Fourth Amendment. The execution, delivery and
performance of this Fourth Amendment will not (a) contravene the terms of the
Company's certificate of incorporation, by-laws or other organization document;
(b) conflict with or result in any breach or contravention of the provisions of
any contract to which the Company is a party, or the violation of any law,
judgment, decree or governmental order, rule or regulation applicable to the
Company, or result in the creation under any agreement or instrument of any
security interest, lien, charge, or encumbrance upon any of the assets of the
Company. No approval or authorization of any governmental authority is required
to permit the execution, delivery or performance by the Company of this Fourth
Amendment, or the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The representations and
warranties of the Company set forth in Section IV of the Agreement are true and
correct in all respects, except as to such representations made as of an earlier
specified date.
3.5 Default. No Default or Event of Default under the Agreement has
occurred and is continuing.
4. Miscellaneous.
4.1 Effectiveness of Agreement. Except as hereby expressly amended, the
Agreement and each other Loan Document shall each remain in full force and
effect, and are hereby ratified and confirmed in all respects on and as of the
date hereof.
4.2 Waivers. This Fourth Amendment is specific in time and in intent
and does not constitute, nor should it be construed as, a waiver of any other
right, power or privilege under the Agreement or under any agreement, contract,
indenture, document or instrument mentioned in the Agreement; nor does it
preclude any exercise thereof or the exercise of any other right, power or
privilege, nor shall any future waiver of any right, power, privilege or default
hereunder, or under the Agreement or any agreement, contract, indenture,
document or instrument mentioned in the Agreement, constitute a waiver of any
other default of the same or of any other term or provision.
4.3 Counterparts. This Fourth Amendment may be executed in any number
of counterparts, all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This Fourth Amendment shall not become
effective until the Company, the Agent and the Required Banks shall have signed
a copy hereof, and each Guarantor shall have consented hereto, whether the same
or counterparts, and the same shall have been delivered to the Agent.
4.4 Jurisdiction. This Fourth Amendment shall be governed by and
construed under the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed and delivered as of the date first written above.
AVONDALE INDUSTRIES, INC.
By /S/ XXXXXX X. XXXXX, XX.
----------------------------
Name XXXXXX X. XXXXX, XX.
----------------------------
Title V.P. - FINANCE
----------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent and a Bank
By /S/ XXXXXX XXXXX
----------------------------
Xxxxxx Xxxxx
Vice President
WHITNEY NATIONAL BANK
By /S/ XXXXX X. XXXXXXXX, XX.
----------------------------
Name XXXXX X. XXXXXXXX, XX.
----------------------------
Title SVP
----------------------------
ABN-AMRO BANK, N.V. ABN-AMRO BANK, N.V.
By /S/ XXXXXX X. XXXX By /S/ XXXX X. XXXXXXXXXXXXX
------------------------- ----------------------------
Name XXXXXX X. XXXX Name XXXX X. XXXXXXXXXXXXX
------------------------- ----------------------------
Title SENIOR VICE PRESIDENT Title ASSISTANT VICE PRESIDENT
------------------------- ----------------------------
FIRST NATIONAL BANK OF COMMERCE
By /S/ XXXX X. XXXX
----------------------------
Name XXXX X. XXXX
----------------------------
Title SENIOR VICE PRESIDENT
----------------------------
CONSENT OF GUARANTORS
Each of the undersigned Guarantors, as a party to a Subsidiary
Guarantee dated May 10, 1994, hereby consents to the foregoing Fourth Amendment
to Amended and Restated Credit Agreement dated as of even date herewith and
confirms that the Subsidiary Guaranty executed by it remains in full force and
effect after giving effect thereto and represent and warrant that there is no
defense, counterclaim or offset of any type or nature under the Subsidiary
Guaranty.
Dated as of September 12, 1998.
AVONDALE GULFPORT MARINE, INC. AVONDALE TECHNICAL SERVICES, INC.
By /S/ XXXXXX X. KITCHEN By /S/ XXXXXX X. KITCHEN
---------------------------- ------------------------
Name: XXXXXX X. KITCHEN Name: XXXXXX X. KITCHEN
---------------------------- ------------------------
Title VP, SECRETARY, AND TREASURER Title PRESIDENT
---------------------------- ------------------------
XXXXXXXX TECHNICAL SERVICES, INC. GENCO INDUSTRIES, INC.
By /S/ XXXXXX X. XXXXXX III By /S/ XXXXXX X. XXXXX, XX.
---------------------------- ------------------------
Name: XXXXXX X. XXXXXX III Name: XXXXXX X. XXXXX, XX.
---------------------------- ------------------------
Title PRESIDENT Title SECRETARY & TRESURER
---------------------------- ------------------------
AVONDALE PROPERTIES, INC. AVONDALE LAND MANAGEMENT COMPANY
By /S/ XXXXXX X. KITCHEN By /S/ XXXXXX X. KITCHEN
---------------------------- ------------------------
Name: XXXXXX X. KITCHEN Name: XXXXXX X. KITCHEN
---------------------------- ------------------------
Title VP & SECRETARY Title VP & SECRETARY
---------------------------- ------------------------
