SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment") is entered into as of October 30, 1996, 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, that certain Second Amendment to
Revolving Credit Agreement dated as of February 9, 1995, that
certain Third Amendment, Waiver and Consent to Revolving Credit
Agreement dated as of May 10, 1995, that certain Fourth Amendment
and Consent to Revolving Credit Agreement dated as of September
1, 1995, and that certain Fifth Amendment to Revolving Credit
Agreement dated as of November 17, 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 $42,500,000 for the Company's ongoing
working capital and general corporate needs; and
WHEREAS, the Company has requested that the Banks agree to
certain amendments and modifications to the terms of the Existing
Agreement;
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. Amendment to the Existing Agreement. Subject to and
conditioned upon the fulfillment of each of the conditions
precedent set forth in Section 2 hereof, the Existing
Agreement is hereby amended as follows: Section 7.7 of the
Existing Agreement is hereby amended to delete the terms
thereof in their entirety and to insert the following
therefor:
Section 7.7 Limitation on Capital Expenditures.
Incur Capital Expenditures which, in the aggregate for
the Company and its Subsidiaries taken as a whole,
exceed $7,500,000 for the Company's fiscal year ending
December 31, 1994, $25,000,000 for the Company's fiscal
year ending December 31, 1995, $14,000,000 for the
Company's fiscal year ending December 31, 1996 and
$9,000,000 for any fiscal year thereafter.
2. Conditions Precedent to Effectiveness of Amendments and
Consent. The amendments and modifications set forth in Section 1
hereof shall become effective upon, and are expressly conditioned
upon, the fulfillment of each of the following conditions
precedent:
(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 Banks) from each of the
Subsidiary Guarantors a reaffirmation of the Subsidiary Guarantee
executed by it in the form attached hereto.
(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) 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.
3. 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.
4. 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.
5. 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
fees and expenses of the Agent related to this Amendment
shall be paid by the Company.
6. 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.
7. 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.
8. 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, and if so
delivered shall be deemed to be delivered with the intention
that they shall have the same effect as an original
counterpart hereof. Any party delivering any such
counterpart by telecopy shall promptly forward to the Agent
an original counterpart hereof.
[Signature Pages Follow]
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
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By /s/ W. XXXXXX XXXXXXX
---------------------
Name: W. Xxxxxx Xxxxxxx
Title:Vice President
THE BANKS:
BANK OF AMERICA ILLINOIS,
successor-in-interest to
CONTINENTAL BANK, as a Bank
and as LC Issuer
By /s/ W. XXXXXX XXXXXXX
---------------------
Name: W. Xxxxxx Xxxxxxx
Title:Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as LC Issuer
By /s/ W. XXXXXX XXXXXXX
---------------------
Name: W. Xxxxxx Xxxxxxx
Title:Vice President
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
WHITNEY NATIONAL BANK
By /s/ XXXXX X. XXXXXXXX, XX.
--------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, successor
to FIRST INTERSTATE BANK OF
TEXAS, N.A.
By /s/ XXXXX X. XXXXXXXX
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON
THE FOLLOWING PAGE]
FIRST NATIONAL BANK
OF COMMERCE
By /s/ AD XXXXX
---------------
Name: A. Xxxxx Xxxxx
Title: Banking Officer
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 Sixth Amendment 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
---------------------
Title: Vice President, Secretary & Treasurer
Dated as of October 30, 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 Sixth Amendment 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/ XX XXXXX
------------
Title: Secretary & Treasurer
Dated as of October 30, 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 Sixth Amendment 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/ XX XXXXX
------------
Title: Secretary & Treasurer
Dated as of October 30, 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 Sixth Amendment 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/ XX XXXXX
------------
Title: Secretary & Treasurer
Dated as of October 30, 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 Sixth Amendment 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
---------------------
Title: Vice President & Secretary
Dated as of October 30, 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 Sixth Amendment 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: Vice President, Chief Financial
Officer and Secretary
By
Avondale Properties, Inc.,
a general partner
By /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Vice President and Secretary
Dated as of October 30, 1995
