THIRD AMENDMENT, WAIVER AND CONSENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT, WAIVER AND CONSENT TO REVOLVING
CREDIT AGREEMENT (this "Amendment") is entered into as of May 10,
1995, by and among AVONDALE INDUSTRIES, INC., a Louisiana
corporation (the "Company"), the various financial institutions
signatory hereto (collectively, the "Banks," and, individually, a
"Bank"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as LC Issuer and as successor agent to BANK OF
AMERICA ILLINOIS (successor-in-interest to CONTINENTAL BANK), as
agent for the Banks (the "Agent"). Words and phrases having
defined meanings in the Credit Agreement referred to below shall
have the same respective meanings when used herein, unless
otherwise expressly defined herein.
WITNESSETH:
WHEREAS, the parties hereto have entered into a
Revolving Credit Agreement, dated as of May 10, 1994 as amended
by that certain First Amendment and Waiver to Revolving Credit
Agreement dated as of May 31, 1994 and that certain Second
Amendment to Revolving Credit Agreement dated as of February 9,
1995 (collectively, the "Existing Agreement" and as amended by
this Amendment, the "Credit Agreement"), relating to a revolving
credit facility in an amount not to exceed $35,000,000 for the
Company's ongoing working capital and general corporate needs;
WHEREAS, the Company, the Banks and the Agent desire
(i) to amend and waive certain provisions of the Existing
Agreement to permit the Company to extend certain financial
accommodations to or for the benefit of American Heavy Lift
Shipping Company, Inc., a Delaware corporation ("American Heavy
Lift") in connection with the Company's construction of four (4)
product tankers to be flagged under the United States flag for
use in the United States coastwise trade and that comply with the
requirements of the Oil Pollution Act of 1990 (collectively, the
"AHL Tankers") and (ii) to increase the amount of the revolving
credit facility to $42,500,000, in each case, on the terms and
conditions set forth herein; and
WHEREAS, Bank of America National Trust and Savings
Association has succeeded to the rights and duties of the Agent
under the Credit Agreement and the other Loan Documents;
WHEREAS, the Company has delivered to the Agent and the
Agent has delivered to the Banks an Extension Notice in which the
Company requested that the Expiration Date of the Existing
Agreement be extended for one additional year;
NOW THEREFORE, in consideration of the premises and the
mutual agreements set forth herein and for other consideration
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows;
1. Amendments to the Existing Agreement. Subject to
and conditioned upon the fulfillment of each of the conditions
precedent set forth in Section 4 hereof, the Existing Agreement
is hereby amended as follows:
(a) The definition of "LC Issuer" is hereby amended to
delete the terms thereof in their entirety and to insert the
following therefor:
"LC Issuer" shall mean Bank of America Illinois
and/or Bank of America National Trust and Savings
Association in its individual capacity and not as Agent and,
with the consent of the Agent, the Company and Bank of
America National Trust and Savings Association, any Bank.
With respect to Letters of Credit issued by the LC Issuer,
the LC Issuer shall have the benefits of each provision of
this Agreement as if it were a Bank, and provisions of this
Agreement and the other Loan Documents which are for "the
benefit of the Banks" shall also be for the benefit of the
LC Issuer. If there shall be more than one LC Issuer at any
time, to the extent relevant, the term "LC Issuer" shall
mean both LC Issuers.
(b) The definition of "Line of Credit" is hereby
amended to delete the terms thereof in their entirety and to
insert the following therefor:
"Line of Credit" shall mean the aggregate
revolving credit line extended by the Banks to the Company
for Loans and Letters of Credit pursuant to and in
accordance with the terms of this Agreement, in the amount
of $42,500,000.00 as such amount may be reduced from time to
time in accordance with Section 2.5 or Section VIII.
(c) Section 2.2(a) is hereby amended to delete the
terms thereof in their entirety and to insert the following
therefor:
The Loans made by each Bank pursuant hereto shall be
evidenced by a promissory note of the Company substantially
in the form of Exhibit J (as amended, supplemented, amended
and restated, or otherwise modified, each a "Revolving Note"
and collectively the "Revolving Notes"), made payable to the
order of such Bank in a principal amount equal to such
Bank's Commitment as of the Effective Date (or such other
amount as may otherwise be relevant as a result of any
assignments permitted by this Agreement).
(d) Section 10.2 is hereby amended to delete the terms
of the first sentence of the second paragraph thereof in its
entirety and to insert the following therfor:
Notwithstanding the foregoing, without the consent of any
Bank or the LC Issuer, the Agent, upon the request of the
Company, shall release its Lien, or enter into intercreditor
and/or subordination agreements with lenders to the
Company's and any Subsidiary Guarantor's customers
subordinating the Agent's Lien, on certain Inventory which
shall constitute or form a part of work-in-process with
respect to which both title thereto has passed to customers
of the Company or any Subsidiary Guarantor pursuant to the
terms of the applicable contract with such customers and for
which an Account has arisen (whether or not such Account has
been billed).
(e) Schedule I is hereby amended to delete the terms
thereof in their entirety and to insert Exhibit A attached hereto
therefor.
2. Waiver Relating to American Heavy Lift Contract.
Subject to and conditioned upon the fulfillment of each of the
conditions precedent set forth in Section 4 hereof, and effective
as of the date of this Amendment, the Required Banks hereby (i)
waive the provisions of Sections 7.3 and 7.13 of the Existing
Agreement to the extent, and solely to the extent, necessary to
permit the Company to extend financial accommodations to American
Heavy Lift (in the form of a guarantee) in connection with the
Company's construction of the AHL Tankers in an aggregate
principal amount not to exceed $6,000,000 for all such extensions
and (ii) waive the provisions of Section 7.9 of the Existing
Agreement to permit the Company to purchase the xxxxxx of the AHL
Tankers for consideration not to exceed $20,000,000 in the
aggregate, which xxxxxx shall be simultaneously resold to
American Heavy Lift for consideration in the same amount and of
the same type as that paid by the Company therefor. The
documentation pursuant to which such extensions of credit are
made and governed shall be substantially in the form of that
documentation delivered to each of the Banks prior to the date of
this Amendment, with any material changes thereto requiring the
further consent of the Required Banks.
3. Acknowledgment Relating to Existing DOL Letter of
Credit. Each of the Banks hereby acknowledges that Bank of
America National Trust and Savings Association ("BofA") and Bank
of America Illinois ("BAI") in their respective capacities as LC
Issuers are contemplating the substitution of the current
$20,000,000 Letter of Credit issued by BAI in favor of the United
States Department of Labor (the "DOL") (the "BAI Letter of
Credit") with a $20,000,000 Letter of Credit issued by BofA in
favor of the DOL (the "BofA Letter of Credit"). In order to
facilitate such exchange the BofA Letter of Credit will be
delivered to the DOL prior to the surrender of the BAI Letter of
Credit to BAI. Each of the Banks acknowledges and agrees that it
shall continue to have a participation interest in both the BAI
Letter of Credit and the BofA Letter of Credit notwithstanding
the limitations on their respective commitments set forth in the
Credit Agreement. Upon BAI's actual receipt of the BAI Letter
of Credit the BAI Letter of Credit shall be cancelled and the
Agent shall notify each of the Banks of such cancellation.
4. Conditions Precedent to Effectiveness of
Amendments, Waiver and Consent. The amendments and modifications
set forth in Section 1 hereof and the waivers and consents set
forth in Sections 2 hereof shall become effective upon, and are
expressly conditioned upon, the fulfillment of each of the
following conditions precedent on or prior to June 1, 1995:
(a) Amendment. The Agent shall have received this
Amendment, duly executed and delivered by an authorized officer
of the Company and each of the Banks.
(b) Subsidiary Guarantor Consent. The Agent shall
have received (with a copy for each of the other Banks) from each
of the Subsidiary Guarantors a reaffirmation of the Subsidiary
Guarantee executed by it.
(c) Material Adverse Change. In the opinion of the
Banks (as evidenced by their execution of this Amendment), no
event or condition shall have occurred or exist which could
reasonably be expected to have a Material Adverse Effect.
(d) MARAD Approval. The Agent shall have received
copies of MARAD documentation approving the increase in the Line
of Credit and the amendment to the 900 Foot Floating Drydock
Mortgage reflecting such increase.
(e) Legal Opinion. The Agent shall have received the
favorable opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Xxxxxxx, Louisiana counsel to the Company, addressed to the
Agent, the LC Issuer and the Banks in form and substance
satisfactory to the Agent and its counsel.
(f) Revised Revolving Notes. The Agent shall have
received an Amended and Restated Revolving Note (or an amendment
to the existing Revolving Notes) for each of the Banks evidencing
the increase in each Bank's Commitment as contemplated by this
Amendment.
(g) Fee. The Agent shall have received a fee equal to
0.25% of the $7,500,000 increase in the Line of Credit (which fee
shall be paid to the Banks (including Bank of America Illinois as
a Bank) pro rata based upon the respective increases in their
Commitments), and an amendment processing fee for its own account
pursuant to a separate letter agreement with the Company.
(h) American Heavy Lift Documentation. The Agent
shall have received copies of all documentation relating to
American Heavy Lift's issuance of bonds guaranteed by MARAD and
the Company's related guarantees and such documents shall be in
form and substance satisfactory to Agent and its counsel.
(i) Extension Documentation. The Agent shall have
received a duly executed Consent Notice satisfactory to Agent
from each of the Banks agreeing to extend the Expiration Date for
one additional year (to May 10, 1997).
(j) Other Documents. The Agent shall have received
such other documents, instruments and agreements as it shall have
reasonably requested in connection with the transactions
contemplated by this Amendment.
5. Representations, Warranties and Covenants. In
order to induce the Agent and the Banks to enter into this
Amendment, the Company hereby represents, warrants and covenants
to the Agent and the Banks as follows:
(a) The execution, delivery and performance by
the Company of this Amendment (i) are within the Company's
corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) require no action by or in
respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default
under, any provision of any applicable law, statute,
ordinance, regulation, rule, order or other governmental
restriction or of the Certificate or Articles of
Incorporation or By-Laws of the Company, (v) do not
contravene, or constitute a default under, any agreement,
judgment, injunction, order, decree, indenture, contract,
lease, instrument or other commitment to which the Company
is a party or by which the Company or any of its assets are
bound and (vi) will not result in the creation or imposition
of any Lien upon any asset of the Company under any existing
indenture, mortgage, deed of trust, loan or credit agreement
or other agreement or instrument to which the Company is a
party or by which it or any of its assets may be bound or
affected.
(b) This Amendment and the Credit Agreement are
the legal, valid and binding obligations of the Company, and
are enforceable against the Company in accordance with their
terms.
(c) The representations and warranties contained
in the Credit Agreement and the other Loan Documents are
true and correct in all material respects on and as of the
date hereof as though made on the date hereof, except to the
extent that such representations expressly relate solely to
an earlier date (in which case such representations and
warranties were true and accurate on and as of such earlier
date).
(d) No Default or Event of Default has occurred
and is continuing.
(e) On or prior to May 31, 1995 the Company shall
cause to be delivered to the Agent the favorable opinion of
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx,
Louisiana counsel to the Company, addressed to the Agent,
the LC Issuer and the Banks in form and substance
satisfactory to the Agent and its counsel with respect to
the amendment to the 900 Foot Floating Drydock Mortgage
reflecting the increase in the Commitments contemplated by
this Amendment.
(f) The Company will not, without the prior
written consent of the Required Banks, amend or otherwise
modify (or agree to amend or otherwise modify) any provision
of (i) those certain Credit Support Agreements, dated on or
about the date hereof, by and between the Company and
American Heavy Lift or (ii) any promissory notes, mortgages,
security agreements or similar instruments or agreements
executed pursuant to or in connection with such Credit
Support Agreements.
6. Reference to and Effect Upon the Credit Agreement.
Upon the effectiveness of this Amendment, each reference in the
Existing Agreement to "the Agreement", "hereunder", "hereof",
"herein", or words of like import, shall mean and be a reference
to the Credit Agreement, as amended hereby and each reference to
the Existing Agreement in any other Loan Document shall mean and
be a reference to the Credit Agreement, as amended hereby.
7. Reaffirmation; Expenses. The Company hereby
reaffirms to the Agent and each of the Banks that, except as
modified hereby, the Credit Agreement and all of the Loan
Documents remain in full force and effect and have not been
otherwise waived, modified or amended. Except as expressly
modified hereby, all of the terms and conditions of the Credit
Agreement shall remain unaltered and in full force and effect.
The Company acknowledges that all reasonable legal expenses of
the Agent related to this Amendment shall be paid by the Company.
8. Confirmation of Collateral Documents. The Company
hereby (i) ratifies and confirms its obligations under the
Collateral Documents and acknowledges and agrees that the
Collateral Documents to which the Company is a party are the
legal, valid and binding obligations of the Company, enforceable
against it in accordance with their terms; and (ii) agrees that
the Obligations (for purposes of each of such Collateral
Documents) shall include, without limitation, the Obligations
under and as defined in the Credit Agreement as amended by this
Amendment.
9. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS
AND ANY DISPUTE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY,
THE SUBSIDIARIES, THE AGENT AND THE BANKS IN CONNECTION WITH THIS
AMENDMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS
AND DECISIONS OF THE STATE OF ILLINOIS.
10. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. One or more counterparts of this Amendment may
be delivered by telecopier, with the intention that they shall
have the same effect as an original counterpart thereof.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
AVONDALE INDUSTRIES, INC.
By: /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE BANKS:
BANK OF AMERICA ILLINOIS, successor-
in-interest to CONTINENTAL BANK,
as a Bank and as LC Issuer
By: /s/ XXXXXX XXXXXXX
------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as LC Issuer
By: /s/ XXXXXX XXXXXXX
------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
WHITNEY NATIONAL BANK
By: /s/ XXXXX X. XXXXXXXX, XX.
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
FIRST INTERSTATE BANK OF TEXAS,N.A.
By: /s/ XXXXX X. XXXXXXXXX
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FIRST NATIONAL BANK OF COMMERCE
By: /s/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: VIce President
EXHIBIT A
SCHEDULE I TO
AVONDALE INDUSTRIES, INC.
REVOLVING CREDIT AGREEMENT
Commitments Amount Percentage
Bank of America Illinois $18,200,000 42.8235295%
Whitney National Bank $12,150,000 28.5882353%
First National Bank of Commerce $ 6,075,000 14.2941176%
First Interstate Bank $ 6,075,000 14.2941176%
Total $42,500,000 100.0000000%
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Third Amendment, Waiver and Consent to Revolving Credit
Agreement and acknowledges the continued validity, enforceability
and effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
AVONDALE GULFPORT MARINE, INC.
By /s/ XXXXXX X. KITCHEN
---------------------
Xxxxxx X. Kitchen
Title:
Dated: May 10, 1995
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Third Amendment, Waiver and Consent to Revolving Credit
Agreement and acknowledges the continued validity, enforceability
and effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
AVONDALE TECHNICAL SERVICES, INC.
By /s/ XXXXXX X. KITCHEN
---------------------
Xxxxxx X. Kitchen
Title:
Dated: May 10, 1995
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Third Amendment, Waiver and Consent to Revolving Credit
Agreement and acknowledges the continued validity, enforceability
and effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
XXXXXXXX TECHNICAL SERVICES, INC.
By \S\ X. X. XXXXX
--------------
X. X. Xxxxx
Title:
Dated: May 10, 1995
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Third Amendment, Waiver and Consent to Revolving Credit
Agreement and acknowledges the continued validity, enforceability
and effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
GENCO INDUSTRIES, INC.
By /s/ XXXXXX X. KITCHEN
---------------------
Xxxxxx X. Kitchen
Title:
Dated: May 10, 1995
CONSENT
By Subsidiary Guarantee dated as of February 9, 1995
(the "Guarantee"), the undersigned (the "Guarantor") guaranteed
to the Secured Parties (as defined therein), subject to the
terms, conditions and limitations set forth therein, the prompt
payment and performance of all of the Obligations (as defined
therein). The Guarantor consents to the Company's execution of
the foregoing Third Amendment, Waiver and Consent to Revolving
Credit Agreement and acknowledges the continued validity,
enforceability and effectiveness of the Guarantee with respect to
all loans, advances and extensions of credit to the Company,
whether heretofore or hereafter made, together with all interest
thereon and all expenses in connection therewith.
AVONDALE PROPERTIES, INC.
By /s/ XXXXXX X. KITCHEN
---------------------
Xxxxxx X. Kitchen
Title:
Dated: May 10, 1995
By Subsidiary Guarantee dated as of February 9, 1995
(the "Guarantee"), the undersigned (the "Guarantor") guaranteed
to the Secured Parties (as defined therein), subject to the
terms, conditions and limitations set forth therein, the prompt
payment and performance of all of the Obligations (as defined
therein). The Guarantor consents to the Company's execution of
the foregoing Third Amendment, Waiver and Consent to Revolving
Credit Agreement and acknowledges the continued validity,
enforceability and effectiveness of the Guarantee with respect to
all loans, advances and extensions of credit to the Company,
whether heretofore or hereafter made, together with all interest
thereon and all expenses in connection therewith.
AVONDALE LAND MANAGEMENT COMPANY,
a Louisiana general partnership
By Avondale Industries, Inc.,
a general partner
By /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title:
By Avondale Properties, Inc.,
a general partner
By /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title:
Dated: May 10, 1995
