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EXHIBIT 4(i)
AMENDMENT NUMBER ONE
TO
LOAN AGREEMENT
BETWEEN
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
(TO WHICH NATIONSBANK, N.A. IS THE SUCCESSOR BY MERGER)
AS "LENDER"
AND
INTRAV, INC.
AS "BORROWER"
AN AMENDMENT ("this Amendment") by INTRAV, INC., as "Borrower", and
NATIONSBANK, N.A., successor by merger to The Boatmen's National Bank of St.
Louis, as "Lender", to the Loan Agreement between them executed as of
December 31, 1996 (the "Original Loan Agreement").
In consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged, Borrower and
Lender agree as follows:
1. DEFINITIONS. Capitalized Terms used and not otherwise defined
herein have the meanings given them in the Loan Agreement. All references to
the "Loan Agreement" in the Original Loan Agreement and in this Amendment
shall be deemed to be references to the Original Loan Agreement as it is
amended hereby and as it may be further amended, restated, extended, renewed,
replaced, or otherwise modified from time to time.
2. EFFECTIVE DATE OF AMENDMENT. This Amendment shall become
effective as of January 1, 1997, and is intended to evidence the actual
conduct of Lender and Borrower with respect to certain matters and their
continuing agreement with respect to those matters.
3. AMENDMENT TO ORIGINAL LOAN AGREEMENT.
3.1 LETTER OF CREDIT COMMITMENT. Section 3.2 of the Original
Loan Agreement is hereby amended by substituting the following therefor in
its entirety:
3.2 LETTER OF CREDIT COMMITMENT Lender commits to issue
standby letters of credit and commercial letters of credit for the
account of Borrower or any Subsidiary of Borrower from time to
time from the Effective Date to the Maturity Date, but only in
connection with transactions satisfactory to Lender and only if
the Letter of Credit Exposure for all Letters of Credit will not
as a result of such issuance exceed the lesser of (i) $5,000,000
or (ii) any excess of the Maximum Available Amount over the
Revolving Loan, and in the case of Letters of Credit requested to
be issued for the account of Subsidiaries of Borrower, the Letter
of Credit Exposure with respect to all Letters of Credit issued
for the account of such Subsidiaries will not as a result of such
issuance exceed $400,000. The expiration date of any Letter of
Credit will be a Business Day that is not more than one year
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after its issuance date and is not later than the Maturity Date;
provided, however, that the expiration date for a Letter of Credit
may be later than the Maturity Date if Borrower provides cash
collateral satisfactory to Lender as security for Borrower's
obligation to reimburse Lender for all draws thereunder.
3.2 DEFINITION OF LETTER OF CREDIT EXPOSURE. The definition of "Letter
of Credit Exposure" in Appendix 1.1 to the Original Loan Agreement is hereby
amended by substituting the following therefor in its entirety:
"Letter of Credit Exposure": the undrawn amount of all outstanding
Letters of Credit issued by Lender under the Letter of Credit
Commitment plus all unreimbursed amounts drawn on such Letters of
Credit.
3.3 SECURITY AND GUARANTIES. The following sentence is
hereby added at the end of Section 10 of the Original Loan Agreement:
Borrower also hereby unconditionally and irrevocably guaranties the
reimbursement to Lender of, and will cause to be reimbursed to
Lender, all amounts drawn on any Letter of Credit issued for the
account of any Subsidiary of Borrower.
4. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of
Lender under the Original Loan Agreement or any of the other Loan Documents,
nor constitute a waiver of any provision of the Original Loan Agreement, any
of the other Loan Documents or any existing Default or Event of Default, nor
act as a release or subordination of the Security Interests of Lender under
the Security Documents. Each reference in the Original Loan Agreement to "the
Agreement", "hereunder", "hereof", "herein", or words of like import, and the
term "Loan Agreement" herein and in any of the Loan Documents shall be deemed
to mean the Original Loan Agreement as amended by this Amendment.
5. REAFFIRMATION. Borrower Hereby acknowledges and confirms that (i)
except as expressly amended hereby the Original Loan Agreement remains in
full force and effect, (ii) Borrower has no defenses to its obligations under
the Loan Agreement and the other Loan Documents, (iii) the Security Interests
of Lender under the Security Documents secure all the Loan Obligations under
the Loan Agreement, continue in full force and effect and have the same
priority as before this Amendment, (iv) Borrower has no claim against Lender
arising from or in connection with the Loan Agreement or the other Loan
Documents, and (v) all of the representations and warranties in Section 13 of
the Original Loan Agreement remain true and correct as of the date of this
Amendment as if made on and as of the date of this Amendment.
6. GOVERNING LAW. This Amendment has been executed and delivered in
St. Louis, Missouri, and shall be governed by and construed under the laws of
the State of Missouri without giving effect to choice or conflicts of law
principles thereunder.
7. SECTION TITLES. The section titles in this Amendment are for
convenience of reference only and shall not be construed so as to modify any
provisions of this Amendment.
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8. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Amendment may be
executed in one or more counterparts and on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Signatures to this Amendment may be given by
facsimile or other electronic transmission, and such signatures shall be
fully binding on the party sending the same.
9. INCORPORATION BY REFERENCE. Lender and Borrower hereby agree that
all of the terms of the Loan Documents are incorporated in and made a part of
this Amendment by this reference.
10. STATUTORY NOTICE. The following notice is given pursuant to Section
432.045 of the Missouri Revised Statutes; nothing contained in such notice
will be deemed to limit or modify the terms of the Loan Documents or this
Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO
PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
Borrower and Lender hereby affirm that there is no unwritten oral credit
agreement between Borrower and Lender with respect to the subject matter of
this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed on behalf of
Borrower and Lender by their duly authorized officers.
INTRAV, INC. NATIONSBANK, N.A.
by its Executive Vice President and Chief By its Senior Vice President
Financial Officer
/s/ Wayne S. Smith II /s/ Keith M. Schmelder
- --------------------------------- -------------------------------
Wayne S. Smith II Keith M. Schmelder
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EXHIBIT A
Supplemental Disclosure Schedule
No supplemental disclosures if no items listed below:
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AMENDMENT NUMBER TWO
TO
LOAN AGREEMENT
EFFECTIVE DECEMBER 31, 1996
BY AND BETWEEN
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
(PREDECESSOR BY MERGER TO NATIONSBANK, N.A.)
AND
INTRAV, INC.
In consideration of their mutual agreements herein and for other sufficient
consideration, the receipt of which is hereby acknowledged, INTRAV, INC.
("Borrower") and NATIONSBANK, N.A., successor by merger to The Boatmen's
National Bank of St. Louis ("Lender") agree as follows:
1. DEFINITIONS; SECTION REFERENCES. The term "Original Loan
Agreement" means the Loan Agreement Effective December 31, 1996, between
Borrower and Lender, as amended by Amendment Number One thereto effective as
of January 1, 1997. The term "this Amendment" means this Amendment. The term
Loan Agreement means the Original Loan Agreement as amended by this
Amendment. Capitalized terms used and not otherwise defined herein have the
meanings defined in the Loan Agreement.
2. EFFECTIVE DATE OF THIS AMENDMENT. This Amendment will be
effective on November 14, 1997, provided that all of the conditions in
Section 4 of this Amendment have been satisfied on or before such date.
3. AMENDMENTS TO LOAN AGREEMENT. Subject to satisfaction of the
conditions in Section 4 of this Amendment, the Original Loan Agreement is
amended as follows:
A. The table in Section 4.5 is amended to read in its entirety as
follows:
- ---------------------------------------------------------------------------------------
If the ratio of The LIBOR Increment shall be: The CBR Increment shall be:
Borrower's
Funded Debt to
EBITDA is:
- ---------------------------------------------------------------------------------------
Equal to or 2.25% 0%
greater than 2.00
but less than 3.00
- ---------------------------------------------------------------------------------------
Equal to or 2.00% 0%
greater than 1.00
but less than 2.00
- ---------------------------------------------------------------------------------------
Less than 1.00 1.75% 0%
- ---------------------------------------------------------------------------------------
C. Section 5.2 is amended to read in its entirety as follows:
"Borrower shall pay to Lender a "Non-Use Fee" calculated by applying the
daily equivalent of the Non-Use Fee Rate to the Unused Revolving
Commitment on
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each day during the period from the Effective Date to the Maturity
Date. The "Unused Revolving Commitment" on any day shall be the
amount of the Revolving Commitment minus the sum of the Revolving
Loan and the Letter of Credit Exposure. The Non-Use Fee shall be
payable quarterly in arrears, commencing on the first day of the
first calendar quarterly beginning after the Effective Date and
continuing on the first day of each calendar quarter thereafter
and on the Maturity Date. The applicable "Non-Use Fee Rate" is
0.5% per annum.
D. Section 5.3 of the Original Loan Agreement is amended to read in
its entirety as follows:
"5.3 Borrower shall pay to Lender a one-time Letter of Credit Fee for
each Letter of Credit issued by Lender. The "Letter of Credit Fee"
shall be an amount equal to 1.0% per annum of the original face
amount of each Letter of Credit and is payable quarterly in
arrears. Borrower shall also pay Lender's other customary fees for
amendment and renewal of a Letter of Credit, for negotiation of
drafts drawn under Letters of Credit, and similar fees, all in
accordance with Lender's normal practice at the time."
E. The term "Corporate Base Rate" in the Glossary and Index of
Defined Terms is changed to read in its entirety as follows:
"Corporate Base Rate": the per annum interest rate designated from time
to time by Lender as its 'prime rate', which is a reference rate
and does not necessarily represent the lowest or best rate
charged to any customer of Lender."
4. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall
not become effective, and the Loan Agreement shall continue in full force and
effect as it existed in the absence of this Amendment unless:
4.1 CERTAIN DOCUMENTS. Borrower shall before November 14,
1997, deliver to Lender a certificate of the Secretary of Borrower
certifying (i) that the articles or certificate of incorporation
and bylaws of Borrower previously certified to Lender in
connection with the execution of the Loan Agreement have not been
amended, (ii) that resolutions adopted by the Board of Directors
of Borrower authorizing the execution, delivery and performance of
this Amendment by Borrower are attached to the certificate and
remain in full force and effect, and (iii) the names, titles, and
true signatures of the incumbent corporate officers who are
authorized to sign this Amendment or attest signatures or seals on
this Amendment on behalf of Borrower.
4.2 NO MATERIAL ADVERSE CHANGE. Nothing shall have occurred
from December 31, 1996, to the date of execution hereof that is
reasonable likely to have a Material Adverse Effect.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Lender that (i) execution of this Amendment has
been duly authorized by all requisite action of Borrower; (ii) no consents
are necessary from any third parties for Borrower's execution, delivery
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or performance of this Amendment, (iii) this Amendment and the Loan Agreement
as amended hereby constitute the legal, valid and binding obligations of
Borrower enforceable against Borrower in accordance with their terms, except
to the extent that the enforceability thereof against Borrower may be limited
by bankruptcy, insolvency or other laws affecting the enforceability of
creditors rights generally or by equity principles of general application,
(iv) except as disclosed on the supplemental disclosure schedule attached
hereto as Exhibit A and the disclosure schedule attached to the Original Loan
Agreement, all of the representations and warranties contained in Section 13
of the Original Loan Agreement, as amended hereby, are true and correct in
all material respects with the same force and effect as if made on and as of
the effective date of this Amendment, (v) there is no Existing Default, and
(vi) no Default or Event or Default will occur immediately or with the
passage of time or giving of notice as a consequence of this Amendment
becoming effective.
6. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of
Lender under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Loan Agreement, any of the other
Loan Documents or any Existing Default, nor act as a release or subordination
of the Security Interests of Lender under the Security Documents. Each
reference in the Loan Agreement to "the Agreement", "hereunder", "hereof",
"herein", or words of like import, shall be read as referring to the Loan
Agreement as amended hereby.
7. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i)
except as expressly amended hereby the Original Loan Agreement and other Loan
Documents remain in full force and effect, (ii) the Original Loan Agreement,
as amended hereby, is in full force and effect, (iii) Borrower has no
defenses to its obligations under the Loan Agreement and the other Loan
Documents, (iv) the Security Interests of Lender under the Security Documents
continue in full force and effect and have the same priority as before this
Amendment, and (v) Borrower has no claim against Lender arising from or in
connection with the Loan Agreement or the other Loan Documents.
8. COUNTERPARTS. This Amendment may be executed by the parties hereto
on any number of separate counterparts, and all such counterparts taken
together shall constitute one and the same instrument. It shall not be
necessary in making proof of this Amendment to produce or account for more
than one counterpart signed by the party to be charged.
9. COUNTERPART FACSIMILE EXECUTION. This Amendment, or a signature
page thereto intended to be attached to a copy of this Amendment, signed and
transmitted by facsimile machine or telecopier shall be deemed and treated as
an original document. The signature of any person thereon, for purposes
hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an
original signature on an original document. At the request of any party
hereto, any facsimile or telecopy document is to be re-executed in original
form by the Persons who executed the facsimile or telecopy document. No party
hereto may raise the use of a facsimile machine or telecopier or the fact
that any signature was transmitted through the use of a facsimile or
telecopier machine as a defense to the enforcement of this Amendment.
10. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Amendment and the
rights and
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obligations of the parties hereunder shall be governed by and construed and
interpreted in accordance with the internal laws of the State of Missouri
applicable to contracts made and to be performed wholly within such state,
without regard to choice or conflict of laws provisions.
11. INCORPORATION BY REFERENCE. Lender and Borrower hereby agree that
all of the terms of the Loan Documents are incorporated in and made a part of
this Amendment by this reference.
12. STATUTORY NOTICE. The following notice is given pursuant to Section
432.045 of the Missouri Revised Statutes; nothing contained in such notice
will be deemed to limit or modify the terms of the Loan Documents or this
Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO
PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the effective date
first above written.
INTRAV, INC. NATIONSBANK, N.A.
by its Executive Vice President and Chief By its Senior Vice President
Financial Officer
/s/ Wayne L. Smith II /s/ Keith M. Schmelder
- ------------------------------------ --------------------------
Wayne L. Smith II Keith M. Schmelder
Notice Address: Notice Address:
7711 Bonhomme Avenue 800 Market Street
St. Louis, MO 63105 St. Louis, MO 63101
FAX # 314-727-2533 FAX # 314-466-7783
TEL # 314-727-0500 TEL # 314-466-6642
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EXHIBIT A
SUPPLEMENTAL DISCLOSURE SCHEDULE
No supplemental disclosures if no items listed below:
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AMENDMENT NUMBER THREE
TO
LOAN AGREEMENT
EFFECTIVE DECEMBER 31, 1996
BY AND BETWEEN
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
(PREDECESSOR BY MERGER TO NATIONSBANK, N.A.)
AND
INTRAV, INC.
In consideration of their mutual agreements herein and for other sufficient
consideration, the receipt of which is hereby acknowledged, INTRAV, INC.
("Borrower") and NATIONSBANK, N.A., successor by merger to The Boatmen's
National Bank of St. Louis ("Lender") agree as follows:
1. DEFINITIONS; SECTION REFERENCES. The term "Original Loan Agreement"
means the Loan Agreement effective December 31, 1996, between
Borrower and Lender, as amended by Amendment Number One thereto effective as
of December 31, 1996, and Amendment Number Two thereto effective as of
November 14, 1997. The term "this Amendment" means this Amendment. The term
Loan Agreement means the Original Loan Agreement as amended by this
Amendment. Capitalized terms used and not otherwise defined herein have the
meanings defined in the Loan Agreement.
2. EFFECTIVE DATE OF THIS AMENDMENT. This Amendment will be
effective on the earlier of December 31, 1997, or the date when all of the
conditions in Section 4 of this Amendment have been satisfied. Lender will
give written notice to Borrower when such conditions have been satisfied.
3. AMENDMENTS TO LOAN AGREEMENT. Subject to satisfaction of the
conditions in Section 4 of this Amendment, the Loan Agreement is amended as
follows:
A. The amount of the Revolving Commitment stated in Section 3.1.1 is
changed from $10,000,000 to $15,000,000 and the table in Section
3.1.1 is amended to read in its entirety as follows:
- --------------------------------------------------------
Effective Date of Reduction New
Reduction Revolving
Commitment
- --------------------------------------------------------
December 31, 1998 $2,000,000 $13,000,000
- --------------------------------------------------------
December 31, 1999 $2,000,000 $11,000,000
- --------------------------------------------------------
B. The following sentence is added at the end of Section 3.1.2:
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"No Advance will be made which would result in the Revolving Loan exceeding
$11,000,000 unless and until Lender has a first priority Security
Interest in the Bahamian registered vessel Clipper Adventurer and
all of her machinery and equipment and a valid and effective
assignment of all income and proceeds thereof, subject to no other
Security Interests except those that will be fully discharged by
appropriate contemporaneous application of the proceeds of such
Advance in a manner satisfactory to Lender."
C. Section 15.1 is amended to read in its entirety as follows:
"15.1 Use of Proceeds. All proceeds of the Loan shall be used
for permitted Investments, Capital Expenditures related to
Borrower's business (including acquisitions of the vessel Clipper
Adventure), working capital and general corporate purposes.
D. Section 5.2 is amended to read in its entirety as follows:
"Borrower shall pay to Lender a "Non-Use Fee" calculated by
applying the daily equivalent of the Non-Use Fee Rate to the
Unused Revolving Commitment on each day during the period from the
Effective Date to the Maturity Date. The "Unused Revolving
Commitment" on any day shall be the amount of the Revolving
Commitment minus the sum of the Revolving Loan and the Letter of
Credit Exposure. The Non-Use Fee shall be payable quarterly in
arrears, commencing on the first day of the first calendar
quarterly beginning after the Effective Date and continuing on the
first day of each calendar quarter thereafter and on the Maturity
Date. The applicable "Non-Use Fee Rate is 0.15% per annum."
E. Section 6.1 is amended to read in its entirety as follows:
"6.1 MATURITY DATE. Borrower shall repay the Revolving Loan
and all unpaid accrued interest thereon on December 31, 2000."
F. The last sentence of Section 9.1 is amended to read in its
entirety as follows:
"Such funds will be deposited in an demand deposit account of
Borrower's at the Lending Office."
G. Section 10.1 is amended to read in its entirety as follows:
"10.1 SHIP MORTGAGES. Ship mortgages satisfactory to Lender
and (i) granting to Lender a Security Interest in each of the
United States registered vessels Nantucket Clipper, Yorktown
Clipper and the Bahamian registered vessel Clipper Adventurer, and
(ii) assigning to Lender all income and proceeds thereof, which
Security Interests shall be subject only to Permitted Security
Interests that exist on the Execution Date and affect the
foregoing."
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H. Section 17.3 is amended to read in its entirety as follows:
"17.3 MINIMUM TANGIBLE NET WORTH. Borrower's Tangible Net
Worth as of the end of each fiscal quarter of Borrower beginning
December 31, 1997, shall at no time be less than $2,000,000 plus
(i) 25% of Borrower's cumulative net income (but not any net loss)
for such fiscal periods and (ii) 25% of the net proceeds from the
issuance by Borrower of any equity securities."
I. Section 17.5 is amended to read in its entirety as follows:
"17.5 CAPITAL EXPENDITURES. Borrower shall not make Capital
Expenditures that in the aggregate exceed $2,500,000 in any one
fiscal year of Borrower, provided, however, that if Borrower's
Capital Expenditures in any one fiscal year are less than
$2,500,000, Borrower may expend the difference in the next ensuing
fiscal year in addition to the Capital Expenditures otherwise
permitted hereunder; further provided, that Borrower may make
Capital Expenditures of up to a total of $12,700,000 for acquiring
and refitting the vessel Clipper Adventure in Borrower's fiscal
years ended in 1997 and 1998 in addition to the Capital
Expenditures permitted in the prior clauses of this sentence. Any
portion of the additional $12,700,000 not expended in Borrower's
fiscal year ended in 1997 may be expended in Borrower's fiscal
year ended in 1998."
J. Clauses (v) and (vi) of Section 18.3 is amended to read in its
entirety as follows:
"(v)" fifth, to payment of interest accrued on the Revolving Loan
and to all Interest Hedge Obligations (if any), pro rata; (vi)
sixth, to payment of the Revolving Loan and all remaining Interest
Hedge Obligations (if any), pro rata;"
4. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall
not become effective, and the Loan Agreement shall continue in full force and
effect as it existed in the absence of this Amendment unless:
4.1 CERTAIN DOCUMENTS. Borrower shall deliver to Lender the
following, all in form and substance satisfactory to Lender and (if
applicable) executed by Borrower:
4.1.1. GOOD STANDING CERTIFICATES. Certificates of good
standing of Borrower in Borrower's states of incorporation and
qualification, issued by the Secretary of State of such states.
4.1.2. CERTIFICATE OF SECRETARY OF BORROWER. A Certificate of
the Secretary of Borrower certifying (i) that the articles or
certificate of incorporation and bylaws of Borrower previously
certified to Lender in connection with the execution of the Loan
Agreement have not been amended, (ii) that resolutions adopted by
the Board of Directors of Borrower authorizing the execution,
delivery and performance of this Amendment by Borrower are attached
to the certificate and remain in full force and effect, and (iii)
the names, titles, and true signatures of the incumbent corporate
officers who are authorized to sign this Amendment, or attest
signatures or seals on this Amendment on behalf of Borrower.
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4.1.3. PROOF OF INSURANCE Certificates of insurance showing
that Borrower has insurance on the vessel Clipper Adventurer that
meets the requirements for such insurance in the Loan Agreement.
4.1.4. LEGAL OPINION. An opinion of Borrower's counsel
regarding the good standing of Borrower, its due authorization of
the execution and delivery of this Amendment and such other matters
as Lender may require.
4.2 NO MATERIAL ADVERSE CHANGE. Nothing shall have occurred from June
30, 1997, to the date of execution hereof that is reasonable likely to
have a Material Adverse Effect.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents
and warrants to Lender that (i) execution of this Amendment has been duly
authorized by all requisite action of Borrower, (ii) no consents are necessary
from any third parties for Borrower's execution, delivery or performance of
this Amendment, (iii) this Amendment and the Loan Agreement as amended hereby
constitute the legal, valid and binding obligations of Borrower enforceable
against Borrower in accordance with their terms, except to the extent that the
enforceability thereof against Borrower may be limited by bankruptcy,
insolvency or other laws affecting the enforceability of creditors rights
generally or by equity principles of general application, (iv) except as
disclosed on the supplemental disclosure schedule attached hereto as Exhibit A
and the disclosure schedule attached to the Original Loan Agreement, all of the
representations and warranties contained in Section 13 of the Original Loan
Agreement, as amended hereby, are true and correct in all material respects
with the same force and effect as if made on and as of the effective date of
this Amendment, (v) there is no Existing Default, and (vi) no Default or Event
or Default will occur immediately or with the passage of time or giving of
notice as a consequence of this Amendment becoming effective.
6. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Lender
under the Loan Agreement or any of the other Loan Documents, nor constitute a
waiver of any provision of the Loan Agreement, any of the other Loan Documents
or any Existing Default, nor act as a release or subordination of the Security
Interests of Lender under the Security Documents. Each reference in the Loan
Agreement to "the Agreement", "hereunder", "hereof", "herein", or words of like
import, shall be read as referring to the Loan Agreement as amended hereby.
7. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i)
except as expressly amended hereby the Original Loan Agreement and other Loan
Documents remain in full force and effect, (ii) the Original Loan Agreement,
as amended hereby, is in full force and effect, (iii) Borrower has no
defenses to its obligations under the Loan Agreement and the other Loan
Documents, (iv) the Security Interests of Lender under the Security Documents
continue in full force and effect and have the same priority as before this
Amendment, and (v) Borrower has no claim against Lender arising from or in
connection with the Loan Agreement or the other Loan Documents.
8. COUNTERPARTS. This Amendment may be executed by the parties hereto
on any number of separate counterparts, and all such counterparts taken
together shall constitute one and the same instrument. it shall not be
necessary in making proof of this Amendment to produce or account
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for more than one counterpart signed by the party to be charged.
9. COUNTERPART FACSIMILE EXECUTION. This Amendment, or a signature
page thereto intended to be attached to a copy of this Amendment, signed and
transmitted by facsimile machine or telecopier shall be deemed and treated as
an original document. The signature of any person thereon, for purposes
hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an
original signature on an original document. At the request of any party
hereto, any facsimile or telecopy document is to be re-executed in original
form by the Persons who executed the facsimile or telecopy document. No
party hereto may raise the use of a facsimile machine or telecopier or the
fact that any signature was transmitted through the use of a facsimile or
telecopier machine as a defense to the enforcement of this Amendment.
10. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Amendment and the
rights and obligations of the parties hereunder shall be governed by and
construed and interpreted in accordance with the internal laws of the State
of Missouri applicable to contracts made and to be performed wholly within
such state, without regard to choice or conflict of laws provisions.
11. INCORPORATION BY REFERENCE. Lender and Borrower hereby agree that
all of the terms of the Loan Documents are incorporated in and made a part of
this Amendment by this reference.
12. STATUTORY NOTICE. The following notice is given pursuant to Section
432.045 of the Missouri Revised Statutes; nothing contained in such notice
will be deemed to limit or modify the terms of the Loan Documents of this
Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO
PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
5
16
IN WITNESS WHEREOF the parties have caused this Agreement to
be executed by appropriate duly authorized officers as of the
effective date first above written.
INTRAV, INC. NATIONSBANK, N.A.
by its Executive Vice President and Chief By its Senior Vice President
Financial Officer
/s/ Wayne L. Smith II /s/ Keith M. Schmelder
- ------------------------------------ -------------------------------
Wayne L. Smith II Keith M. Schmelder
Notice Address: Notice Address:
7711 Bonhomme Avenue 800 Market Street
St. Louis, MO 63105 St. Louis, MO 63101
FAX # 314-727-2533 FAX # 314-466-7783
TEL # 314-727-0500 TEL # 314-466-6642
17
EXHIBIT A
SUPPLEMENTAL DISCLOSURE SCHEDULE
No supplemental disclosures if no items listed below:
18
AMENDMENT NUMBER FOUR
to
LOAN AGREEMENT
Effective December 31, 1996
by and between
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
(Predecessor by merger to NationsBank, N.A.)
and
INTRAV, INC.
In consideration of their mutual agreements herein and for other sufficient
consideration, the receipt of which is hereby acknowledged, INTRAV, INC.
("Borrower") and NATIONSBANK, N.A., successor by merger to The Boatmen's
National Bank of St. Louis ("Lender") agree as follows:
1. DEFINITIONS; SECTION REFERENCES. The term "Original Loan
Agreement" means the Loan Agreement Effective December 31, 1996 between
Borrower and Lender, as amended by Amendment Number One thereto effective as
of January 1, 1997, Amendment Number Two thereto effective as of November 14,
1997, and Amendment Number Three thereto effective as of December 31, 1997
("Amendment Number Three"). The term "this Amendment" means this Amendment.
The term Loan Agreement means the Original Loan Agreement as amended by this
Amendment. Capitalized terms used and not otherwise defined herein have the
meanings defined in the Loan Agreement.
2. SCRIVENER'S ERROR IN AMENDMENT NUMBER THREE. The parties
acknowledge that in Section 1 of Amendment Number Three, the reference to
"Amendment Number One thereto effective as of December 31, 1996" is a
scrivener's error. The parties agree that such reference should be deemed to
state "Amendment Number One thereto effective as of January 1, 1997."
3. EFFECTIVE DATE OF THIS AMENDMENT. This Amendment will be
effective as of February 12, 1998, but only if all of the conditions in
Section 5 of this Amendment have been satisfied.
4. AMENDMENTS TO LOAN AGREEMENT. Subject to satisfaction of the
conditions in Section 5 of this Amendment, the Loan Agreement is amended as
follows:
4.1 REVOLVING COMMITMENT. The amount of the Revolving Commitment
stated in Section 3.1.1 is changed from $15,000,000 to $20,000,000 and the
table in Section 3.1.1 is amended to read in its entirety as follows:
- ------------------------------------------------------------------------
EFFECTIVE DATE OF REDUCTION NEW
REDUCTION REVOLVING
COMMITMENT
- ------------------------------------------------------------------------
December 31, 1998 $2,000,000 $18,000,000
- ------------------------------------------------------------------------
December 31, 1999 $2,000,000 $16,000,000
- ------------------------------------------------------------------------
19
4.2 LAST SENTENCE OF SECTION 3.1.2. The last sentence of Section
3.1.2 (which was added in connection with Amendment Number Three) is hereby
deleted in its entirety and the following sentence is substituted in lieu
thereof: "No Advance will be made which would result in the Revolving Loan
exceeding $13,000,000 unless and until Lender has a first priority Security
Interest in the Bahamian registered vessel Clipper Adventurer and all of her
machinery and equipment and a valid and effective assignment of all income
and proceeds thereof, subject to no other Security Interests except those
that will be fully discharged by appropriate contemporaneous application of
the proceeds of such Advance in a manner satisfactory to Lender."
4.3 CAPITAL EXPENDITURES. The text of Section 17.5 of the Loan
Agreement is hereby deleted in its entirety and the following is substituted
in lieu thereof: "Borrower shall not make Capital Expenditures that in the
aggregate exceed $2,500,000 in any one fiscal year of Borrower; provided,
however, that Borrower may make Capital Expenditures of up to a total of
$16,700,000 for acquiring and refitting the vessel Clipper Adventurer in
Borrower's fiscal years ended in 1997 and 1998 in addition to the Capital
Expenditures permitted in the prior clause of this sentence. Any portion of
the additional $16,700,000 not expended in Borrower's fiscal year ended in
1997 may be expended in Borrower's fiscal year ended in 1998."
5. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall
not become effective, and the Loan Agreement shall continue in full force and
effect as it existed in the absence of this Amendment unless:
5.1 CERTAIN DOCUMENTS. Borrower shall deliver to Lender the following,
all in form and substance satisfactory to Lender and (if applicable) executed
by Borrower:
5.1.1. AMENDED AND RESTATED REVOLVING NOTE. An Amended
and Restated Revolving Note in the principal amount of $20,000,000.00.
5.1.2. AMENDMENTS TO SHIP MORTGAGES. An amendment to
each of the Ship Mortgages, increasing the amount secured to $20,000,000.00.
5.1.3. CERTIFICATE OF SECRETARY OF BORROWER. A
Certificate of the Secretary of Borrower certifying that resolutions adopted
by the Board of Directors of Borrower authorizing the execution, delivery and
performance of this Amendment by Borrower are attached to the certificate and
remain in full force and effect.
5.1.4. LEGAL OPINION. An opinion of Borrower's counsel
regarding the good standing of Borrower, its due authorization of the
execution and delivery of this Amendment and such other matters as Lender may
require.
5.2. NO MATERIAL ADVERSE CHANGE. Nothing shall have occurred from
December 31, 1997, to the date of execution hereof that is reasonably likely
to have a Material Adverse Effect.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Lender that (i) execution of this Amendment has
been duly authorized by all requisite action of Borrower; (ii) no consents
are necessary from any third parties for Borrower's execution, delivery or
performance of this Amendment, (iii) this Amendment and the Loan Agreement as
amended hereby constitute the legal, valid and binding obligations of
Borrower enforceable against
20
Borrower in accordance with their terms, except to the extent that the
enforceability thereof against Borrower may be limited by bankruptcy, insolvency
or other laws affecting the enforceability of creditors rights generally or by
equity principles of general application, (iv) except as disclosed on the
supplemental disclosure schedule attached hereto as Exhibit A and the disclosure
schedule attached to the Original Loan Agreement, all of the representations and
warranties contained in Section 13 of the Original Loan Agreement, as amended
hereby, are true and correct in all material respects with the same force and
effect as if made on and as of the effective date of this Amendment, (v) there
is no Existing Default, and (vi) no Default or Event or Default will occur
immediately or with the passage of time or giving of notice as a consequence of
this Amendment becoming effective.
7. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of
Lender under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Loan Agreement, any of the other
Loan Documents or any Existing Default, nor act as a release or subordination
of the Security Interests of Lender under the Security Documents. Each
reference in the Loan Agreement to "the Agreement", "hereunder", "hereof",
"herein", or words of like import, shall be read as referring to the Loan
Agreement as amended hereby.
8. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i) except
as expressly amended hereby the Original Loan Agreement and other Loan
Documents remain in full force and effect, (ii) the Original Loan Agreement,
as amended hereby, is in full force and effect, (iii) Borrower has no
defenses to its obligations under the Loan Agreement and the other Loan
Documents, (iv) the Security Interests of Lender under the Security Documents
continue in full force and effect and have the same priority as before this
Amendment, and (v) Borrower has no claim against Lender arising from or in
connection with the Loan Agreement or the other Loan Documents.
9. COUNTERPARTS. This Amendment may be executed by the parties hereto on any
number of separate counterparts, and all such counterparts taken together
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Amendment to produce or account for more than one
counterpart signed by the party to be charged.
10. COUNTERPART FACSIMILE EXECUTION. This Amendment, or a signature page
thereto intended to be attached to a copy of this Amendment, signed and
transmitted by facsimile machine or telecopier shall be deemed and treated as
an original document. The signature of any person thereon, for purposes
hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an
original signature on an original document. At the request of any party
hereto, any facsimile or telecopy document is to be re-executed in original
form by the Persons who executed the facsimile or telecopy document. No party
hereto may raise the use of a facsimile machine or telecopier or the fact
that any signature was transmitted through the use of a facsimile or
telecopier machine as a defense to the enforcement of this Amendment.
11. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Amendment and the rights
and obligations of the parties hereunder shall be governed by and construed
and interpreted in accordance with
21
the internal laws of the State of Missouri applicable to contracts made and to
be performed wholly within such state, without regard to choice or conflict of
laws provisions.
12. INCORPORATION BY REFERENCE. Lender and Borrower hereby agree that all
of the terms of the Loan Documents are incorporated in and made a part of
this Amendment by this reference.
13. STATUTORY NOTICE. The following notice is given pursuant to Section
432.045 of the Missouri Revised Statutes; nothing contained in such notice
will be deemed to limit or modify the terms of the Loan Documents or this
Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S))
AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING,
WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
14. STATUTORY NOTICE--INSURANCE. The following notice is given pursuant to
Section 427.120 of the Missouri Revised Statutes; is deemed incorporated into
the Loan Agreement and nothing contained in such notice shall be deemed to
limit or modify the terms of the Loan Documents
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR
AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT
OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT,
PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY
CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION
WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY
US, BUT ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE
AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE
COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE,
INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY
IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE
COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE
OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
[the next page is the signature page]
22
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by appropriate duly authorized officers as of the effective date first above
written.
TEL # 314-466-6642
23
INTRAV, INC. NATIONSBANK, N.A.
by its Executive Vice President and Chief By its Senior Vice President
Financial Officer
/s/ Wayne L. Smith II /s/ Keith M. Schmelder
- ------------------------------------ ------------------------
Wayne L. Smith II Keith M. Schmelder
Notice Address: Notice Address:
7711 Bonhomme Avenue 800 Market Street
St. Louis, MO 63105 St. Louis, MO 63101
FAX # 314-727-2533 FAX # 314-466-7783
TEL # 314-727-0500 TEL # 314-466-6642
24
EXHIBIT A
Supplemental Disclosure Schedule
No supplemental disclosures if no items listed below:
25
AMENDED AND RESTATED REVOLVING NOTE
$20,000,000.00 St. Louis, Missouri
February 12, 1998
For value received, INTRAV, INC., a Missouri corporation ("Borrower"),
promises to pay to the order of NATIONSBANK, N.A. (successor by merger to The
Boatmen's National Bank of St. Louis) ("Lender") the principal sum of TWENTY
MILLION DOLLARS ($20,000,000.00) or such lesser aggregate unpaid principal
amount as shall be outstanding under this Revolving Note (this "Note"), plus
all interest accrued thereon, on the Maturity Date.
Borrower further promises to pay interest from the date hereof on the
balance of said principal from time to time outstanding at a per annum rate
or rates determined pursuant to the Loan Agreement (defined below). Upon the
occurrence of any Event of Default as defined in the Loan Agreement, or at
the option of Lender upon the occurrence of a Default as defined in the Loan
Agreement, all outstanding principal and, to the extent permitted by law,
accrued interest in respect of this Note and all other amounts owing
hereunder shall bear interest, payable on demand, at the rate payable on the
Revolving Loan after maturity, as set forth in the Loan Agreement. In
addition, such higher rate of interest shall apply after Maturity, whether by
acceleration or otherwise. All such interest shall be computed on the basis
of a year deemed to consist of 360 days and paid for the actual number of
days elapsed. Interest shall be payable on such dates as are provided under
the Loan Agreement.
Both principal and interest are payable in Dollars to Lender at the
Lending Office.
This Note is issued under the terms of, and pursuant to the provisions
of, that certain Loan Agreement dated as of December 31, 1996, between Lender
and Borrower, as amended through the date hereof (as it may be further
amended, restated, extended, renewed, replaced, or otherwise modified from
time to time, the "Loan Agreement"). All capitalized terms used and not
otherwise defined herein shall have the same meanings as given them in the
Loan Agreement.
This Note is secured by the Collateral described in the Loan Documents,
executed from time to time by Borrower in favor of Lender as set forth in the
Loan Agreement and reference to the Loan Documents and the Loan Agreement is
made for a statement of the rights of the Lender with respect to such
Collateral.
Borrower shall prepay the principal amount of this Note to the extent
provided in the Loan Agreement. Borrower may prepay the principal amount of
this Note to the extent and upon the conditions provided in the Loan
Agreement.
The date and amount of all disbursements and receipts of principal and
receipts of interest with respect to this Note will be recorded in the
records that Lender normally maintains for instruments and agreements similar
to this Note and the other Loan Documents. The failure to record, or any
error in recording, any of the foregoing shall not, however, affect the
obligation of Borrower to pay principal, interest and other amounts as
required under the Loan Documents.
26
Borrower shall have the burden of proving that Lender's records are not correct.
Borrower agrees that Lender's books and records showing disbursements and
receipts shall be admissible in any action or proceeding arising therefrom, and
shall constitute prima facie proof thereof. Such records shall be deemed
correct, accurate and binding on Borrower and an account stated, except as
expressly provided otherwise in the Loan Agreement.
Reference is made to the Loan Agreement for provisions regarding the
acceleration of the maturity hereof on the occurrence of any Event of
Default, which provisions are incorporated herein by this reference.
If Borrower sells, assigns, transfers or conveys all or any part of the
Real Property Collateral or any interest therein without the prior written
consent of Lender as required by the Loan Agreement, all outstanding
principal and accrued interest under this Note shall become immediately due
and payable.
If any payment required under this Note or the Loan Agreement is not
made when due, or upon any other Event of Default, Borrower shall pay all
costs of collection on this Note, including but not limited to court costs
and reasonable attorneys fees and actual expenses of such attorneys, whether
or not litigation is commenced, including representation of Lender in
connection with any bankruptcy or insolvency proceeding of Borrower.
Demand for payment, protest, notice of dishonor, and all other notices
and demands under this Note and any and all lack of diligence in the
enforcement of this Note are hereby waived by all who are or shall become
parties to this Note and the same hereby assent to each and every extension
or postponement of the time of payment, at or after demand, or other
indulgence, and hereby waive any and all notice thereof. Every such party by
becoming a party to this Note further waives any and all defenses which such
party may have based on suretyship or impairment of collateral with respect
to this Note.
No amendment, modification or waiver of any provision of this Note, nor
consent to any departure by Borrower herefrom, shall be effective unless the
same shall be in writing signed by an authorized officer of Lender, and then
only in the specific instance and for the purpose for which given. No failure
on the part of Lender to exercise, and no delay in exercising, any right
under this Note shall operate as a waiver thereof, nor shall any single or
partial exercise by Lender of any right under this Note preclude any other or
further exercise thereof, or the exercise of any other right. Each and every
right granted to Lender under this Note or allowed to it at law or in equity
shall be deemed cumulative and such remedies may be exercised from time to
time concurrently or consecutively at Lender's option.
All notices required to be given or which may be given in connection
with this Note shall be given in the manner required for notices under the
Loan Agreement.
This Note is governed by and shall be interpreted in accordance with
the laws of the State of Missouri, without regard to choice or conflict of
laws rules.
27
This Note is an amendment and restatement, but not a novation or
refinancing, of the Revolving Note from Borrower to Lender dated as of
December 31, 1996 in the original principal amount of $10,000,000, as it has
been amended and restated from time to time. This Note does not evidence or
effect a release or relinquishment of the priority of the Security Interests
of Lender in any of the Collateral.
INTRAV, INC.
By: /s/ Wayne L. Smith II
----------------------------
Name: Wayne L. Smith II
----------------------------
Title: Executive Vice President
----------------------------