EXHIBIT 4.35
FOURTH AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FOURTH AMENDMENT, dated as of February 24, 2004 (the
"Amendment and Waiver"), 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"), each of the other financial institutions from time to time party
thereto (the "Lenders"), and JPMORGAN CHASE BANK, as Administrative Agent for
the Lenders (in such capacity, the "Agent"), and BANK ONE, N.A. and GENERAL
ELECTRIC CAPITAL CORPORATION, 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 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, that Second Amendment to Revolving Credit and Guaranty Agreement,
dated as of March 31, 2003 and that Third Amendment to Revolving Credit
Agreement, dated as of December 22, 2003 (as the same may be further amended,
modified or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower, the Guarantors and the Lenders have
agreed to amend certain provisions of the Credit Agreement as set forth herein,
subject to the terms and conditions set forth herein; and
NOW, THEREFORE, it is agreed as follows:
As used herein, all terms that are defined in the Credit
Agreement shall have the same meanings herein.
1. Amendment.
(a) Section 2.13(a) of the Credit Agreement is
hereby amended by deleting the words "three Business Days" appearing in the
fourth line thereof and inserting in lieu thereof the words "one Business Day";
and
(b) The parenthetical clause appearing at the end
of subsection (iii) of Section 6.10 of the Credit Agreement is hereby amended in
its entirety to read as follows:
(provided, further, that the aggregate
outstanding principal amount of such advances
and loans to Jeffboat LLC may not exceed (x)
$4,000,000 during
the period beginning on December 22, 2003 and
ending on February 23, 2004 or (y) $6,500,000
during the period beginning on February 24,
2004 and ending on May 31, 2004).
2. Borrowing Base Compliance. The Borrower hereby
represents and warrants that although the aggregate principal amount of
outstanding Loans plus the aggregate Letter of Credit Outstandings exceeded the
Borrowing Base during the period from February 13, 2004 to February 20, 2004,
after giving effect to the $6,000,000 prepayment of Tranche B Loans on February
20, 2004 the aggregate principal amount of all outstanding Loans plus the
aggregate Letter of Credit Outstandings does not exceed the Borrowing Base.
3. Miscellaneous.
This Amendment shall not become effective until the date on
which this Amendment and Waiver shall have been executed by the Borrower, the
Guarantors and the Required Lenders, and the Agent shall have received evidence
satisfactory to it of such execution.
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.
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.
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.
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.
This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[SIGNATURE PAGES TO FOLLOW]
2
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be duly executed as of the day and the year first
written.
BORROWER:
AMERICAN COMMERCIAL LINES LLC
By:
-------------------------------
Title:
GUARANTORS:
AMERICAN COMMERCIAL LINES HOLDINGS LLC
By:
-------------------------------
Title:
LOUISIANA DOCK COMPANY LLC
By:
-------------------------------
Title:
AMERICAN COMMERCIAL TERMINALS LLC
By:
-------------------------------
Title:
JEFFBOAT LLC
By:
-------------------------------
Title:
ACL CAPITAL CORP.
By:
-------------------------------
Title:
AMERICAN COMMERCIAL BARGE LINE LLC
By:
-------------------------------
Title:
AMERICAN COMMERCIAL LINES INTERNATIONAL LLC
By:
-------------------------------
Title:
ACBL LIQUID SALES LLC
By:
-------------------------------
Title:
AMERICAN COMMERCIAL LOGISTICS LLC
By:
-------------------------------
Title:
HOUSTON FLEET LLC
By:
-------------------------------
Title:
LEMONT HARBOR & FLEETING SERVICES LLC
By:
-------------------------------
Title:
AMERICAN COMMERCIAL TERMINALS - MEMPHIS LLC
By:
-------------------------------
Title:
ORINOCO TASA LLC
By:
-------------------------------
Title:
ORINOCO TASV LLC
By:
-------------------------------
Title:
LENDERS:
-------------------------------
NAME OF INSTITUTION
By:
-------------------------------
Title: