FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
Exhibit 10.3
FIRST AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
CREDIT AND SECURITY AGREEMENT
This First Amendment to Credit and Security Agreement (this “First Amendment”) is entered into
this 7th day of October, 2005, by and among MARITRANS INC., a Delaware corporation (“Maritrans”),
each of the other Borrowers whose names appear on the signature pages of this First Amendment
(individually, a “Borrower”, and collectively, including, without limitation, Maritrans, the
“Borrowers”), CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania state banking institution (as successor
in interest to Mellon Bank, N.A.) (“Citizens”), in the capacities of Administrative Agent and
Collateral Agent and also in its individual capacity as a “Lender”, and each of the other lenders
whose names appear on the signature pages of this First Amendment or, if applicable, in the
Register (each, a “Lender”, and collectively, the “Lenders”).
BACKGROUND
A. The Lenders and the Borrowers are parties to that certain Credit and Security Agreement
dated November 20, 2001 (as amended, restated, modified or supplemented from time to time, the
"Credit Agreement”), pursuant to which the Lenders currently extend loans and other credit
accommodations to the Borrowers. Unless otherwise indicated, all capitalized terms used in this
First Amendment shall have the meaning given to them in the Credit Agreement.
B. The Borrowers have requested, and the Lenders have agreed (subject to the Borrowers’ full
and complete compliance with the terms and conditions contained herein) to increase the Revolving
Credit Facility from Forty Million and 00/100 Dollars ($40,000,000.00) to Sixty Million and 00/100
Dollars ($60,000,000.00).
AGREEMENT
In consideration of the foregoing, and the covenants set forth below, the Borrowers and the
Lenders, intending to be legally bound, agree:
1. Amendments to the Credit Agreement.
(a) Omnibus Amendments.
(i) Deletion of Standby/Term Loan. Lenders acknowledge that the Standby/Term
Loan has been paid in full prior to the date hereof. Accordingly, all references in
the Credit Agreement to “Standby Period”, “Standby/Term Loan”, and “Standby/Term
Loan Limit” are hereby deleted in their entirety.
(ii) Citizens Transaction Consummated. As contemplated by Section 9.8(c) of
the Credit Agreement, prior to the date hereof, the Citizens Transaction has been
consummated. Accordingly, all references in the Credit Agreement and the other Loan
Documents to “Mellon Bank, N.A.” or “Mellon” shall be deleted and replaced with
“Citizens Bank of Pennsylvania” or “Citizens”, as appropriate (except that
references to Mellon in Section 9.8(c) shall not be so deleted and replaced), and
Citizens shall at all times hereafter be the Administrative Agent and Collateral
Agent under the Credit Agreement.
(b) Revised Definitions. The following definitions in Section 1.1 of the Credit
Agreement are hereby amended and restated in their entirety as follows:
“Maturity Date” means October 7, 2010.
“Vessel Mortgage” means a first preferred ship mortgage to be
granted to the Collateral Agent, as mortgagee for the benefit of the Agents
and the Lenders, by a Borrower with respect to each Vessel, to be filed of
public record with the National Vessel Documentation Center of the United
States Coast Guard, as the same may hereafter be
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amended, restated, modified and/or supplemented from time to time, and
“Vessel Mortgages” means any more than one of them.
(c) New Definition. The following definition is hereby added to Section 1.1 of the
Credit Agreement in its entirety as follows:
“Allonges” means each of the Allonges to Senior Secured Promissory
Note dated October 7, 2005 from each of the Borrowers in favor of each of
the Lenders, decreasing the maximum principal amount of each Note.
(d) Increase in Revolving Credit Facility. Sections 2.1(a) through (c) of the Credit
Agreement are hereby amended and restated in their entirety as follows:
(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, and absent the occurrence
of a Potential Default or Event of Default, the Lenders agree, severally on
the basis of their respective Percentage Interests but not jointly, until
the Maturity Date, to make Advances on account of a revolving credit
facility (the “Revolving Credit Facility”) to the Borrowers, and to cause to
be issued, through the Administrative Agent, one or more Letters of Credit,
to or for the benefit or account of one or more of the Borrowers, in an
aggregate amount not to exceed $60,000,000 (the “Aggregate Commitment”),
except as otherwise set forth herein.
(b) Intentionally left blank.
(c) The aggregate principal amount of the Revolving Credit Facility
outstanding and unrepaid, plus the Aggregate Letter of Credit Outstandings,
shall not at any time exceed $60,000,000 (the “Revolving Advance Limit”);
provided, however, at the request of the Borrowers, the
Revolving Advance Limit (and, consequently, the Aggregate Commitment) may be
increased from $60,000,000 up to $120,000,000, in increments of $10,000,000,
subject to the satisfaction of the following conditions: (i) no Potential
Default or Event of Default shall have occurred and be continuing; (ii)
Lenders, or other financial institutions acceptable to the Administrative
Agent, shall have committed to fund such increase; (iii) all necessary
credit approvals shall have been obtained by the Lenders; and (iv) Borrowers
and Guarantors shall have executed and delivered to the Administrative Agent
all documents, agreements and instruments reasonably required by the
Administrative Agent in connection with such increase. Proceeds of, or
availability under, the Revolving Credit Facility shall be used or allocated
by one or more Borrowers for Letters of Credit, Capital Expenditures,
working capital and general corporate purposes. Upon not less than five (5)
Business Days’ notice, the Borrowers may (i) permanently and irrevocably
reduce the Revolving Advance Limit (and, consequently, the Aggregate
Commitment) in increments equal to $5,000,000 or larger integral multiples
of $1,000,000, or (ii) terminate the Revolving Credit Facility at any time;
provided, however, that (A) any prepayment involved in such reduction or
termination shall be subject to the provisions relating to prepayment and
payment of Breakage Costs set forth in this Agreement, and (B) the Revolving
Advance Limit may not be reduced at any time below the Dollar amount of
Letters of Credit Outstanding.
(e) Adjustments to LIBOR Margin Index. The table set forth in Section 2.5(c) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
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| (1) | (2) | (3) | ||
| Level | Funded Debt to EBITDA Ratio | LIBOR Margin | ||
| (LIBOR) | ||||
1
|
Less than .75 | 75.0 basis points | ||
2
|
Greater than or equal to .75, and less than or equal to 1.25 | 100.0 basis points | ||
3
|
Greater than 1.25, and less than or equal to 1.75 | 125.0 basis points | ||
4
|
Greater than 1.75 | 150.0 basis points |
(f) Adjustment to Unused Commitment Fee. The table set forth in Section 2.11(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
| (1) | (2) | (3) | ||
| Level | Funded Debt to EBITDA Ratio | Unused Fee Rate | ||
1
|
Less than .75 | 20.0 basis points | ||
2
|
Greater than or equal to .75, and less than or equal to 1.25 | 20.0 basis points | ||
3
|
Greater than 1.25, and less than or equal to 1.75 | 25.0 basis points | ||
4
|
Greater than 1.75 | 25.0 basis points |
(g) Amendment of Permitted Acquisitions. Section 6.2(a) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
No Sales or Mergers. Merge or consolidate with any Person, or sell
substantially all of its assets to, or purchase substantially all of the assets of,
any other Person without the prior written consent of a Lender Majority; provided,
however, that, so long as no Potential Default or Event of Default shall have
occurred, the foregoing prohibition shall not preclude acquisitions by any Borrower
of entities or assets in the same line of business as any Borrower, respectively, up
to a maximum aggregate purchase price of $30,000,000 per acquisition, provided
further, that, before and after giving effect to any such acquisition on a pro forma
basis, Borrowers, on a consolidated basis, shall be in compliance with the financial
covenants set forth in this Agreement. Furthermore, there shall be no change in the
voting control of any of the Borrowers. Maritrans shall not sell, transfer, pledge,
hypothecate or otherwise dispose of, whether by operation of Law or otherwise, any
of the capital stock in any Borrower, provided, that nothing herein shall
restrict Maritrans from selling or otherwise offering shares of its capital stock
under its Registration Statement on Form S-3 (No. 333-128108) filed on September 6,
2005, and any prospectus supplement filed pursuant thereto.
(h) Deletion of Certain Financial Covenants. Sections 6.2(j)(i) and (iii), and 6.2(l), of the
Credit Agreement are hereby deleted in their entirety and replaced with “Intentionally left blank.”
(i) Deletion of Certain Appraised Value and Updated Appraisal Requirements. Sections 2.3(c), 4.8 and 6.2(p) of the Credit Agreement are hereby deleted in their entirety and
replaced with “Intentionally left blank.” Section 4.7(b) of the Credit Agreement remains in full
force and effect.
(j) Revision to Notice Addresses for Administrative Agent and Collateral Agent. The Notice
addresses of the Administrative Agent and/or the Collateral Agent in Section 10.4 of the Credit
Agreement (along with addresses for copies of such notices) are hereby deleted and replaced with
the following addresses, as appropriate:
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| If to the Administrative Agent and/or the Collateral Agent: |
Citizens Bank of Pennsylvania 0000 Xxxxxxxx Xxxx |
|||||||||
| Xxxxxxxx Xxxxxxx, XX 00000-0000 | ||||||||||
| Attention: Xxxxxx Xxxxxxxxx, Senior Vice President | ||||||||||
| With a copy to: | Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP | |||||||||
| 0000 Xxx Xxxxxxxx Xxxxxx | ||||||||||
| Xxxxxxxxxxxx, XX 00000 | ||||||||||
| Attention: Xxxxx X. Xxxxxxxx, Esquire |
2. Representations and Warranties. In order to induce the Lenders to enter into this
First Amendment, the Borrowers represent and warrant to the Lenders that:
(a) The execution, delivery and performance of this First Amendment, and all agreements,
documents and instruments executed and delivered in connection with this First Amendment (the
“Related Documents”) have been duly authorized by all necessary corporate or other required action,
and do not and will not violate any provision of law, or any agreement, trust or other indenture or
instrument to which any Borrower is a party, or by which any Borrower’s properties may be bound, or
any order or decree affecting the Borrowers or their properties, so that this First Amendment and
the Related Documents will be legal, valid and binding obligations of the Borrowers, enforceable in
accordance with their terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, moratorium and similar laws from time to time in effect which
affect creditor’s rights generally and to the extent existing under applicable law, by legal and
equitable limitations on the enforcement of specific remedies.
(b) All representations and warranties made to the Lenders in the Credit Agreement and the
Loan Documents are true and correct in all material respects, with the same effect as though made
on and as of the date of this First Amendment, and there has neither occurred, nor is there
continuing, any Event of Default or Potential Default.
(c) The Borrowers acknowledge and confirm that this First Amendment, the Credit Agreement and
the other Loan Documents are legal, valid and binding obligations of the Borrowers, enforceable in
accordance with their terms and conditions, except as such enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium and similar laws from time to time in
effect which affect creditor’s rights generally and to the extent existing under applicable law, by
legal and equitable limitations on the enforcement of specific remedies.
(d) There have been no liens, encumbrances, security interests or claims filed against or with
respect to the Collateral, except for Permitted Liens.
(e) Attached hereto as Exhibit A are Amended and Restated Schedules to the Credit
Agreement, which are true, correct and complete in all respects.
(f) Borrowers are in good standing in their respective states of incorporation or formation,
and in all other states in which Borrowers’ failure to be so qualified and in good standing would
have a Material Adverse Effect.
3. Conditions Precedent. As conditions precedent to the matters contemplated by this
First Amendment, the Borrowers shall cause to be delivered to the Lenders (or, where applicable,
the Lenders shall have received), the following agreements, documents, instruments or other
evidence, all in a form and content satisfactory to the Lenders:
(a) This First Amendment, duly executed by the Borrowers;
(b) The Allonges;
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(c) Mortgage Modification Agreements with respect to the Mortgages, duly executed by the
appropriate Borrowers;
(d) Any and all Guarantors of the Obligations shall have consented to the execution,
delivery and performance of this First Amendment and all of the transactions contemplated hereby by
signing one or more counterparts of this First Amendment in the appropriate space indicated below
and returning the same to Administrative Agent;
(e) Copies of all corporate action taken by Borrowers authorizing the execution,
delivery and performance of this First Amendment, certified as true, correct and complete by the
respective Secretaries of Borrowers;
(f) Copies of good standing certificates of each of the Borrowers from their states of
incorporation or formation, and from all other states in which Borrowers’ failure to be so
qualified and in good standing would have a Material Adverse Effect;
(g) No material adverse change shall occur in the financial condition of Borrowers
from that reflected on Borrowers’ consolidated financial statements dated June 30, 2005;
(h) No material adverse change shall have occurred in the business of Borrowers;
(i) Satisfactory completion by Lenders of all required due diligence;
(j) All fees and expenses of the Lenders, including legal fees, required to be paid by
Borrowers shall have been paid;
(k) Borrowers shall be in compliance with all financial covenants before and after
giving effect to the transactions contemplated herein;
(l) Citizens shall have received commitments from the Lenders in an aggregate amount
of $60,000,000; and
(m) Such agreements, documents, instruments and other satisfactory evidence as the
Lenders may request or require under the terms of the Credit Agreement, the Loan Documents or
otherwise.
4. Release.
(a) In consideration of the agreements of Lenders contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrowers and
Guarantors, on behalf of themselves and their respective successors, assigns, and other legal
representatives (individually, a “Releasing Party”, and collectively, the “Releasing Parties”),
hereby absolutely, unconditionally and irrevocably release, remise and forever discharge the
Lenders, and their respective successors and assigns, and their respective present and former
affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees,
agents and other representatives (the Lenders and all such other Persons being hereinafter referred
to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands,
actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums
of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims,
defenses, rights of set off, demands and liabilities whatsoever (individually, a “Claim” and
collectively, “Claims”) of every name and nature, known or unknown, suspected or unsuspected, both
at law and in equity, which the Releasing Parties or any of them may now or hereafter own, hold,
have or claim to have against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and
date of this First Amendment, including, without limitation, for or on account of, or in relation
to, or in any way in connection with any of the Loan Documents, or transactions, course of
performance or course of dealing thereunder or related thereto.
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(b) Each of the Releasing Parties understands, acknowledges and agrees that the release set
forth above may be pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release.
(c) Each of the Releasing Parties agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered shall affect in any
manner the final, absolute and unconditional nature of the release set forth above.
5. Covenant Not to Xxx. Each of the Releasing Parties hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee that it
will not xxx (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the
basis of any Claim released, remised and discharged by such Releasing Party pursuant to Section 4
above. If any Releasing Party violates the foregoing covenant, such Releasing Party agrees to pay,
in addition to such other damages as any Releasee may sustain as a result of such violation, all
attorneys’ fees and costs incurred by any Releasee as a result of such violation.
6. Miscellaneous.
(a) This First Amendment shall be deemed a modification of the Credit Agreement and the Loan
Documents, to the extent it is inconsistent with any of those agreements. Subject to the
foregoing, the Credit Agreement and the Loan Documents, and all of their terms, conditions,
representations, warranties, covenants or other undertakings are ratified and confirmed, and shall
continue in full force and effect, including, without limitation, the provisions regarding
confession of judgment.
(b) This First Amendment shall be binding upon and inure to the benefit of the respective
successors and assigns of the Borrowers and the Lenders, and shall be construed and enforced in
accordance with the laws in effect in the Commonwealth of Pennsylvania.
[Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have executed this First Amendment as of the day and year
first above written.
| BORROWERS: | ||||
| MARITRANS INC. | ||||
| a Delaware corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: Vice President and Chief Financial Officer | ||||
| MARITRANS LIBERTY CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
| MARITRANS 244 CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
| MARITRANS 192 CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
| MARITRANS 400 CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
| MARITRANS 300 CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
| MARITRANS 252 CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
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| MARITRANS INTEGRITY CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
| MARITRANS DILIGENCE CO. | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President | ||||
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LENDERS: |
||||
| CITIZENS BANK OF PENNSYLVANIA | ||||
By: |
/s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
| BANK OF AMERICA, N.A., as successor by merger to Fleet National Bank | ||||
By: |
/s/ Xxxxxxx X. Xxxxxx, III | |||
| Name: Xxxxxxx X. Xxxxxx, III | ||||
| Title: Director | ||||
| SUNTRUST BANK | ||||
By: |
/s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxxx | ||||
| Title: Assistant Vice President | ||||
| HIBERNIA NATIONAL BANK | ||||
By: |
/s/ Xxxx X. Xxxxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxxxx | ||||
| Title: Vice President | ||||
| ADMINISTRATIVE AGENT: | ||||
| CITIZENS BANK OF PENNSYLVANIA | ||||
By: |
/s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
| COLLATERAL AGENT: | ||||
| CITIZENS BANK OF PENNSYLVANIA | ||||
By: |
/s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
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Each of the Undersigned, as sureties for the debts and obligations of Borrowers to Lenders under
the Credit Agreement, as the same may have been amended, supplemented or otherwise modified from
time to time, intending to be legally bound, hereby agrees to the foregoing First Amendment,
including, without limitation, the amendments to the Credit Agreement and the provisions of
Sections 4 and 5 hereof, and confirms and reaffirms as in full force and effect, without setoff,
counterclaim, deduction or other claim of avoidance of any nature, the surety agreement to which it
is a party delivered in connection with the delivery by Borrowers of the original Credit Agreement,
and the respective undersigned’s obligations thereunder:
| MARITRANS OPERATING CO., L.P. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: Treasurer | ||||
| MARITRANS BARGE CO. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President and Secretary | ||||
| MARITRANS TANKERS INC. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx, Xx. | ||||
| Title: Vice President and Secretary | ||||
| MARITRANS TRANSPORTATION INC. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: Treasurer | ||||
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Exhibit A
Amended and Restated Schedules to Credit Agreement
See attached.
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