EXHIBIT 4.33
SECOND AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
SECOND AMENDMENT, dated as of March 31, 2003 (the
"Amendment"), to the REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of
January 31, 2003, among AMERICAN COMMERCIAL LINES LLC, a Delaware limited
liability company (the "Borrower"), a debtor and debtor-in-possession under
Chapter 11 of the Bankruptcy Code, the Guarantors named therein (the
"Guarantors"), JPMORGAN CHASE BANK, a New York banking corporation ("JPMorgan
Chase"), BANK ONE, NA ("Bank One"), GENERAL ELECTRIC CAPITAL CORPORATION
("GECC", and together with JPMorgan Chase and Bank One, the "Original Lenders")
each of the other financial institutions from time to time party thereto
(together with the Original Lenders, the "Lenders"), and JPMORGAN CHASE BANK, as
Administrative Agent for the Lenders (in such capacity, the "Agent"), and BANK
ONE and GECC, as Co-Syndication Agents (in such capacities, the "Co-Syndication
Agents"):
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Original Lenders,
the Agent and the Co-Syndication Agents are parties to that certain Revolving
Credit and Guaranty Agreement, dated as of January 31, 2003, as amended by that
certain First Amendment to Revolving Credit and Guaranty Agreement dated as of
March 13, 2003 (as the same may be further amended, modified or supplemented
from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower and the Guarantors have requested that
from and after the Effective Date (as hereinafter defined) of this Amendment,
the Credit Agreement be amended (including increasing the Total Commitment from
$60,000,000 to $75,000,000) subject to and upon the terms and conditions set
forth herein; and
WHEREAS, Section 10.03(b) of the Credit Agreement provides
that each Lender may assign to one or more Eligible Assignees all or a portion
of its interests, rights and obligations under the Credit Agreement (including,
without limitation, all or a portion of its Commitment and the same portion of
the related Loans at the time owing to it) by executing and delivering with such
Eligible Assignee an Assignment and Acceptance in substantially the form of
Exhibit C to the Credit Agreement (a copy of which is annexed hereto as Schedule
I); and
WHEREAS, the Original Lenders wish to (i) assign to each of
the financial institutions (other than the Original Lenders) that is shown on
Annex A hereto as having a Tranche A Commitment (such financial institutions
other than the Original Lenders, collectively, the "Tranche A New Lenders"), and
each of the Tranche A New Lenders wishes to assume, a pro rata portion of the
Original Lenders' interests, rights and obligations under the Credit Agreement,
and each Original Lender and Tranche A New Lender wishes to assume a portion of
the Tranche A Commitments as increased from $20,000,000 to $25,000,000 such that
upon the Effective Date of this Amendment the Original Lenders and the Tranche A
New Lenders shall
have the respective Tranche A Commitments that are shown on Annex A hereto, and
(ii) assign to each of the financial institutions (other than the Original
Lenders) that is shown on Annex A hereto as having a Tranche B Commitment (such
financial institutions other than the Original Lenders, collectively, the
"Tranche B New Lenders"), and each of the Tranche B New Lenders wishes to
assume, a pro rata portion of the Original Lenders' interests, rights and
obligations under the Credit Agreement, and each Original Lender and Tranche B
New Lender wishes to assume a portion of the Tranche B Commitments as increased
from $40,000,000 to $50,000,000 such that upon the Effective Date of this
Amendment the Original Lenders and the Tranche B New Lenders shall have the
respective Tranche B Commitments that are shown on Annex A hereto; and
WHEREAS, the Borrower, the Guarantors, the Original Lenders,
the Tranche A New Lenders, the Tranche B New Lenders, the Agent and the
Co-Syndication Agents have determined that the execution and delivery of this
Amendment to effectuate a reallocation of the Total Commitment under the Credit
Agreement as in effect on the date hereof will be more expeditious and
administratively efficient than the execution and delivery of a separate
Assignment and Acceptance between each of the Original Lenders and each of the
Tranche A New Lenders, and each of the Original Lenders and each of the Tranche
B New Lenders, respectively;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. As used herein, all terms that are defined in the Credit
Agreement (in effect immediately prior to the Effective Date of this Amendment)
shall have the same meanings herein.
2. The Total Tranche A Commitment is hereby increased from
$20,000,000 to $25,000,000 and the Total Tranche B Commitment is hereby
increased from $40,000,000 to $50,000,000.
3. Annex A to the Credit Agreement is hereby replaced in its
entirety by Annex A hereto.
4. The signature pages of the Credit Agreement are hereby
amended to conform to the signature pages hereto.
5. (i) Each of the Original Lenders hereby irrevocably sells
and assigns to the Tranche A New Lenders, without recourse to the Original
Lenders, and each of the Tranche A New Lenders hereby irrevocably purchases and
assumes from the Original Lenders, without recourse to the Original Lenders, as
of the Effective Date, a pro rata portion of the Original Lenders' interests,
rights and obligations under the Credit Agreement in a principal amount such
that the Original Lenders and the Tranche A New Lenders shall have the
respective Tranche A Commitments that are shown on Annex A hereto (after giving
effect to the increase in the Total Tranche A Commitment contemplated hereby),
and (ii) Each of the Original Lenders hereby irrevocably sells and assigns to
the Tranche B New Lenders, without recourse to the Original Lenders, and each of
the Tranche B New Lenders hereby irrevocably purchases and assumes from the
Original Lenders, without recourse to the Original Lenders, as of the Effective
Date, a
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pro rata portion of the Original Lenders' interests, rights and obligations
under the Credit Agreement in a principal amount such that the Original Lenders
and the Tranche B New Lenders shall have the respective Tranche B Commitments
that are shown on Annex A hereto (after giving effect to the increase in the
Total Tranche B Commitment contemplated hereby).
6. Upon the occurrence of the Effective Date of this
Amendment, (i) each of the Tranche A New Lenders and Tranche B New Lenders shall
be a party to the Credit Agreement as a "Lender" and shall have the rights and
obligations of a Lender thereunder, (ii) the respective Tranche A Commitments of
each of the Original Lenders and Tranche A New Lenders under the Credit
Agreement shall be in the amount set forth opposite its name on Annex A hereto
under the heading "Tranche A Commitment", and (iii) the respective Tranche B
Commitment of each of the Original Lenders and the Tranche B New Lenders under
the Credit Agreement shall be in the amount set forth opposite its name on Annex
A hereto under the heading "Tranche B Commitment", as each of the same may be
reduced from time to time pursuant to Section 2.10 of the Credit Agreement;
7. By its execution and delivery hereof, each of the Original
Lenders shall be deemed to have made each of the statements set forth in clauses
(i) and (ii) of paragraph 2 of the Assignment and Acceptance as if such
statements were fully set forth herein at length.
8. By its execution and delivery hereof, each of the Tranche
A New Lenders and Tranche B New Lenders shall be deemed to have made each of the
statements and covenants set forth in clauses (i), (ii), (iii), (iv), and (v) of
paragraph 3 of the Assignment and Acceptance as if such statements were fully
set forth herein at length.
9. On the Effective Date, (i) each Tranche A New Lender will
pay to the Agent (for the accounts of the Original Lenders) such amount as
represents such Tranche A New Lender's pro rata portion of the aggregate
principal amount of the Tranche A Loans, if any, that are outstanding on the
Effective Date and such Tranche A New Lender's pro rata portion of the aggregate
amount of the then unreimbursed drafts, if any, that were theretofore drawn
under Letters of Credit, (ii) each Tranche B New Lender will pay to the Agent
(for the accounts of the Original Lenders) such amount as represents such
Tranche B New Lender's pro rata portion of the aggregate principal amount of the
Tranche B Loans and (iii) the Agent shall pay to each of the Tranche A New
Lenders and Tranche B New Lenders such fees as have been previously agreed to
between the Agent and such Tranche A New Lenders and the Agent and such Tranche
B New Lenders, respectively. Promptly following the occurrence of the Effective
Date, and in accordance with Section 10.03(e) of the Credit Agreement, the Agent
shall record in the Register the names and addresses of each Tranche A New
Lender and Tranche B New Lender and the principal amount equal to such Tranche A
Lender's Tranche A Commitment, or such Tranche B Lender's Tranche B Commitment,
as the case may be, reflected on Annex A hereto.
10. By its execution and delivery hereof, each of the Tranche
A New Lenders and Tranche B New Lenders (i) agrees that any interest on the
Loans, Commitment Fees and Letter of Credit Fees (pursuant to Sections 2.08,
2.20 and 2.21 of the Credit Agreement) that accrued prior to the Effective Date
shall not be payable to such Tranche A New Lender or Tranche B New Lender and
authorizes and directs the Agent to deduct such amounts from any interest,
Commitment Fees or Letter of Credit Fees paid after the date hereof and to pay
such
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amounts to the Original Lenders (it being understood that interest on the Loans,
Commitment Fees and Letter of Credit Fees respecting the Total Tranche A
Commitment of the Original Lenders, each Tranche A New Lender and each Tranche B
New Lender which accrue on or after the Effective Date shall be payable to such
Lender in accordance with its Total Commitment), (ii) acknowledges that if such
Tranche A New Lender or Tranche B New Lender is organized under the laws of a
jurisdiction outside of the United States, such Tranche A New Lender or Tranche
B New Lender has heretofore furnished to the Agent the forms prescribed by the
Internal Revenue Service of the United States certifying as to such Tranche A
New Lender's or Tranche B New Lender's exemption from United States withholding
taxes with respect to any payments to be made to such Tranche A New Lender or
Tranche B New Lender under the Credit Agreement (or such other documents as are
necessary to indicate that all such payments are subject to such tax at a rate
reduced by an applicable tax treaty) and (iii) acknowledges that such Tranche A
New Lender or Tranche B New Lender has heretofore supplied to the Agent the
information requested on the administrative questionnaire in the form previously
furnished by JPMorgan Chase.
11. The Agent shall promptly deliver to the Borrower the forms
and other documents furnished to it pursuant to paragraph 10(ii) hereof.
12. This Amendment shall not become effective (the "Effective
Date") until (i) the date on which this Amendment shall have been executed by
the Borrower, the Guarantors, the Original Lenders, the Tranche A New Lenders,
the Tranche B New Lenders, the Agent and the Co-Syndication Agents, and the
Agent shall have received evidence satisfactory to it of such execution and (ii)
the payments provided for in the first sentence of paragraph 9 hereof shall have
been made.
13. Except to the extent hereby amended, the Credit Agreement
and each of the Loan Documents remain in full force and effect and are hereby
ratified and affirmed.
14. The Borrower agrees that its obligations set forth in
Section 10.05 of the Credit Agreement shall extend to the preparation, execution
and delivery of this Amendment, including the reasonable fees and disbursements
of special counsel to the Agent.
15. This Amendment shall be limited precisely as written and
shall not be deemed (a) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or (b) to prejudice any right
or rights which the Agent, the Co-Syndication Agents or the Lenders may now have
or have in the future under or in connection with the Credit Agreement or any of
the instruments or agreements referred to therein. Whenever the Credit Agreement
is referred to in the Credit Agreement or any of the instruments, agreements or
other documents or papers executed or delivered in connection therewith, such
reference shall be deemed to mean the Credit Agreement as modified by this
Amendment.
16. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument.
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17. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and the year first written.
BORROWER:
AMERICAN COMMERCIAL LINES LLC
By:
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Title:
GUARANTORS:
AMERICAN COMMERCIAL LINES HOLDINGS LLC
By:
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Title:
LOUISIANA DOCK COMPANY LLC
By:
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Title:
AMERICAN COMMERCIAL TERMINALS LLC
By:
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Title:
JEFFBOAT LLC
By:
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Title:
ACL CAPITAL CORP.
By:
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Title:
Signature Pages to Second Amendment
AMERICAN COMMERCIAL BARGE LINE LLC
By:
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Title:
AMERICAN COMMERCIAL LINES INTERNATIONAL LLC
By:
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Title:
ACBL LIQUID SALES LLC
By:
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Title:
AMERICAN COMMERCIAL LOGISTICS LLC
By:
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Title:
HOUSTON FLEET LLC
By:
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Title:
LEMONT HARBOR & FLEETING SERVICES LLC
By:
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Title:
AMERICAN COMMERCIAL TERMINALS - MEMPHIS LLC
By:
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Title:
Signature Pages to Second Amendment
ORINOCO TASA LLC
By:
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Title:
ORINOCO TASV LLC
By:
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Title:
Signature Pages to Second Amendment
LENDERS:
JPMORGAN CHASE BANK
INDIVIDUALLY AND AS AGENT
By:
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Title:
270 Park Avenue
New York, New York 10017
BANK ONE, NA
INDIVIDUALLY AND AS CO-SYNDICATION AGENT
By:
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Title:
120 South LaSalle Street
Chicago, Illinois 60603
TRS 1 LLC
By:
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Title:
90 Hudson Street
Jersey City, NJ 07302
PB CAPITAL CORPORATION
By:
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Title:
590 Madison Avenue
New York, NY 10022
Signature Pages to Second Amendment
THE TRAVELLERS INSURANCE COMPANY
By:
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Title:
242 Trumbull Street
P.O. Box 150449, 7th Floor
Hartford, CT 06115-0449
Signature Pages to Second Amendment
GENERAL ELECTRIC CAPITAL CORPORATION
INDIVIDUALLY AND AS CO-SYNDICATION AGENT
By:
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Title:
500 West Monroe Street
Chicago, Illinois 60661
Signature Pages to Second Amendment
Annex A
ANNEX A
to
REVOLVING CREDIT AND GUARANTY AGREEMENT
Dated as of January 31, 2003 (as amended)
TRANCHE A TRANCHE B TERM
TRANCHE A REVOLVING REVOLVING LOAN
COMMITMENT COMMITMENT TRANCHE B TERM LOAN COMMITMENT
BANK AMOUNT PERCENTAGE COMMITMENT AMOUNT PERCENTAGE
- ---- ------ ---------- ----------------- ----------
JPMorgan Chase Bank
270 Park Avenue
New York, NY 10017
Attn: Patrick Daniello $ 9,666,666.66 38.67% $17,333,333.34 34.67%
Bank One, NA
120 S. Lasalle
Chicago, IL 60603
Attn: Joseph Heskett
Steven C. Gross $ 6,666,666.67 26.67% $13,333,333.33 26.67%
General Electric Capital Corp.
500 West Monroe Street
Chicago, IL 60661
Attn: Jeffrey Kurtzweil $ 6,666,666.67 26.67% $13,333,333.33 26.67%
TRS 1 LLC
90 Hudson Street
Jersey City, NJ 07302
Attn: John Pineiro $ 0.00 0.00% $ 4,000,000.00 8.00%
PB Capital Corporation
590 Madison Avenue
New York, New York 10022
Attn: Sharon Fong $ 1,333,333.33 5.33% $ 666,666.67 1.33%
The Travellers Insurance Company
242 Trumbull Street
P.O. Box 150449, 7th Floor
Hartford, CT 06115-0449
Attn: John J. Console $ 666,666.67 2.67% $ 1,333,333.33 2.67%
TOTALS: $ 25,000,000.00 100.00% $50,000,000.00 100.00%
SCHEDULE I
EXHIBIT C
TO REVOLVING CREDIT
AND GUARANTY AGREEMENT
ASSIGNMENT AND ACCEPTANCE
DATED: _______ __ , 200__
Reference is made to the Revolving Credit and Guaranty Agreement, dated
as of January __, 2003 (as restated, amended, modified, supplemented and in
effect from time to time, the "Credit Agreement"), among AMERICAN COMMERCIAL
LINES LLC, a Delaware corporation, as Debtor and Debtor-in-Possession (the
"Borrower"), the Guarantors named therein, the Lenders named therein and
JPMORGAN CHASE BANK, as agent for the Lenders (the "Agent"). Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement. This Assignment and Acceptance between the
Assignor (as set forth on Schedule I hereto and made a part hereof) and the
Assignee (as set forth on Schedule I hereto and made a part hereof) is dated as
of the Effective Date (as set forth on Schedule I hereto and made a part
hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date, an undivided interest (the "Assigned Interest") in and to all
the Assignor's rights and obligations under the Credit Agreement in a principal
amount as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other of the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other of the Loan Documents or
any other instrument or document furnished pursuant thereto, other than that it
is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement, any of the other
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iii) requests that the Agent evidence the Assigned Interest by recording
the information contained on Schedule I in the Register which reflects the
assignment being made hereby (and after giving effect to any other assignments
which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance and that it is an Eligible
Assignee; (ii) confirms that it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section 5.01 thereof, and such other documents and information as it has
deemed appropriate to make its own credit analysis; (iii) agrees that it will,
independently and
without reliance upon the Agent, the Assignor or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iv) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement
and the other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi) if the Assignee is
organized under the laws of a jurisdiction outside the United States, attaches
the forms prescribed by the Internal Revenue Service of the United States
certifying as to the Assignee's exemption from United States withholding taxes
with respect to all payments to be made to the Assignee under the Credit
Agreement; and (vii) has supplied the information requested on the
administrative questionnaire heretofore supplied by the Agent.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent, together with a processing and recordation fee of
$3,500, for acceptance by it and recording by the Agent pursuant to Section
10.03 of the Credit Agreement, effective as of the Effective Date (which
Effective Date shall, unless otherwise agreed to by the Agent, be within ten
Business Days after the execution of this Assignment and Acceptance).
5. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignee,
whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date by
the Agent or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder, and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement provided that Assignor hereby represents and warrants that the
restrictions set forth in Section 10.03 of the Credit Agreement pertaining to
the minimum amount of assignments have been satisfied.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
Schedule I to Assignment and Acceptance Respecting the
Revolving Credit and Guaranty Agreement, dated as of January
__, 2002, among American Commercial Lines LLC, the Guarantors
named therein, the Lenders named therein and JPMorgan Chase
Bank, as Agent
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment:
Percentage Assigned (to at least 8 decimals)
Principal Amount shown as a percentage of aggregate
Assigned principal amount of all Lenders
- -------- -------------------------------
$ %
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CONSENTED TO AND ACCEPTED:
JPMORGAN CHASE BANK, ,
as Agent ------------------------------
as Assignor
By By
----------------------------- ---------------------------
Name: Name:
Title: Title:
, ,
- ------------------------------- ------------------------------
as Fronting Bank as Assignee
By By
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Name: Name:
Title: Title: