EXHIBIT 10.1
THIRD AMENDMENT
TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT dated as of November 5, 2001
(the "Third Amendment" or this "Amendment") is among KIRBY CORPORATION, a Nevada
corporation (the "Borrower"), the banks named on the signature pages hereto (the
"Banks"), THE CHASE MANHATTAN BANK (successor by merger to Chase Bank of Texas,
N.A., formerly known as Texas Commerce Bank National Association), as Funds
Administrator (the "Funds Administrator") and as Administrative Agent (the
"Agent"), BANK OF AMERICA, N.A., as Syndication Agent and FIRST UNION NATIONAL
BANK, FLEET NATIONAL BANK and WELLS FARGO BANK (TEXAS), N.A., each as a
Documentation Agent.
PRELIMINARY STATEMENT
Pursuant to that certain Credit Agreement dated as of September 19,
1997, among the Borrower, the banks named therein, the Agent as the Funds
Administrator and the Agent, said parties made a revolving credit facility
available to the Borrower upon the terms and conditions set forth therein. Said
Credit Agreement was amended by that certain First Amendment to Credit Agreement
dated as of January 30, 1998, and that Second Amendment to Credit Agreement
dated November 30, 1998, both of said Amendments among the Borrower, the banks
named therein, the Agent and the Funds Administrator. Said Credit Agreement as
amended by said Amendments and as further amended from time to time is herein
referred to as the "Existing Credit Agreement".
Certain of the banks that have executed the Existing Credit Agreement
no longer wish to be a party thereto and are being replaced by the Banks
executing this Amendment. In addition, the Borrower has requested that certain
provisions of the Existing Credit Agreement be further amended, and the Banks
and the Agent have agreed to amend such provisions to the extent and in the
manner set forth herein.
Accordingly, in consideration of the foregoing and the mutual covenants
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. All capitalized terms defined in the Existing
Credit Agreement, and not otherwise defined herein shall have the same meanings
herein as in the Existing Credit Agreement. Upon the effectiveness of this
Amendment, each reference (a) in the Existing Credit Agreement to "this
Agreement," "hereunder," "herein" or words of like import shall mean and be a
reference to the Existing Credit Agreement, as amended hereby, (b) in the Notes
and the other Loan Documents to the Existing Credit Agreement shall mean and be
a reference to the Existing Credit Agreement, as amended hereby, and (c) in the
Loan Documents to any term defined by reference to the Existing Credit Agreement
shall mean and be a reference to such term as defined in the Existing Credit
Agreement, as amended hereby.
SECTION 1.02 References, Etc. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Amendment shall refer to this
Amendment as a whole and not to any particular provision of this Amendment. In
this Amendment, unless a clear contrary intention appears the word "including"
(and with correlative meaning "include") means including, without limiting the
generality of any description preceding such term. No provision of this
Amendment shall be interpreted or constructed against any Person solely because
that Person or its legal representative drafted such provision.
ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
SECTION 2.01 AMENDMENT TO SECTION 2.06. The pricing grid contained in
Section 2.06(d) is hereby deleted and restated to read as follows:
PRICING GRID
<Table>
<Caption>
S&P/FITCH/ EURODOLLAR ADJUSTED PRIME COMMITMENT UTILIZATION
MOODY'S RATING RATE CD RATE RATE FEE FEE
- -------------- ---------- -------- ----- ---------- -----------
Greater than or equal to BBB+/Baa1 0.750% 0.875% 0.000% 0.200% 0.125%
Greater than or equal to BBB/Baa2 0.875% 1.000% 0.000% 0.250% 0.125%
Greater than or equal to BBB-/Baa3 1.000% 1.125% 0.000% 0.300% 0.250%
Greater than or equal to BB+/Ba1 1.250% 1.375% 0.000% 0.350% 0.250%
Less than BB+/Ba1 1.500% 1.625% 0.000% 0.400% 0.250%
</Table>
SECTION 2.02 AMENDMENT TO SECTION 2.09. Section 2.09 is hereby amended by
deleting paragraph (a) thereof and restating it to read as follows and by adding
a new paragraph (c) thereto as set forth below:
"(a) Subject to the provisions of Section 9.13, the Borrower shall pay
each Bank a commitment fee equal to the applicable percentage set forth in
the pricing grid in Section 2.06(d) on the average unused portion of the
Commitment of such Bank as in effect from time to time for the period from
the date hereof to, but excluding, the Termination Date. Accrued commitment
fees shall be due and payable in arrears on each Quarterly Payment Date in
each year, on the date of any reduction or termination of the Commitment of
such Bank and on the Termination Date, and shall be computed for the period
commencing with the day to which such fee was last paid (or, in the case of
the first commitment fee payment date, for the period commencing with and
including the date hereof) to the date such fee is due and payable.
(c) Subject to the provisions of Section 9.13, the Borrower shall pay
to the Agent for the pro-rata accounts of the Banks, a utilization fee
equal to the applicable percentage set forth in the grid contained in
Section 2.06(d) on the average outstanding balance of the Loans during all
times for which the principal balance of the Loans outstanding (including
all outstanding, undrawn Letters of Credit) exceeds 33% of the Total
Commitment."
SECTION 2.03 AMENDMENT TO SECTION 6.01. Section 6.01 is hereby deleted and
restated to read as follows:
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"Section 6.01 Financial Covenants. The Borrower will not:
(a) Fixed Charge Coverage Ratio. Permit the ratio of (i) EBITDA minus
Capital Expenditures (other than Acquisitions that also constitute Capital
Expenditures) to (ii) Interest Expense, measured as of the last day of any
calendar quarter for the twelve month period then ended to be less than 3.0
to 1.0.
(b) Debt Coverage Ratio. Permit the ratio of (i) Funded Debt as of the
last day of any calendar quarter to (ii) EBITDA for the twelve month period
then ended to equal or exceed the ratio shown below for each quarter-end
for the periods indicated:
12/31/01 through 12/31/02 3.25 to 1
3/31/03 and thereafter 3.0 to 1
(c) Minimum Net Worth. Permit Net Worth, measured as of the last day
of any calendar quarter, to be less than the sum of (i) $225,000,000, plus
(ii) (A) a cumulative amount (calculated as of the end of the most recently
completed fiscal year as of the time of the calculation) equal to fifty
percent (50%), if positive, zero percent (0%), if negative, of Net Income
for the period from July 1, 2001, through December 31, 2001, and for each
fiscal year thereafter during the term of this Agreement and (B) 100% of
the net cash proceeds from the issuance and sale, other than to a
Subsidiary of Borrower, of any of Borrower's capital stock, minus the
actual amount paid by the Borrower, up to a maximum of $25,000,000, for the
repurchase of its capital stock after November 5, 2001."
SECTION 2.04 AMENDMENT TO SECTION 6.04. Section 6.04 is hereby deleted and
restated to read as follows:
"Section 6.04. Restrictions on Negative Pledge. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into any agreement
prohibiting or having the effect of prohibiting the Borrower and its
Subsidiaries from granting a Lien against or otherwise disposing of the
capital stock, promissory notes or other equity or debt interests of any
Consolidated Subsidiary, other than (i) this Agreement, (ii) the
$200,000,000 Credit Agreement, and, (iii) in the case of Kirby Inland
Marine, Inc., a Delaware corporation and a Subsidiary of the Borrower, the
applicable provisions of Section 7.3 of the Dixie Note Purchase Agreement
as in effect of the date of the Third Amendment and as thereafter amended
to lessen or eliminate the restrictions contained therein."
SECTION 2.05 AMENDMENT TO ANNEX A - DEFINITIONS. The below listed
definitions are hereby deleted and the following substituted therefor:
(i) "`Prime Rate' means, as of any particular date, a rate per annum
equal to the highest of (a) the Federal Funds Rate plus one-half of one
percent (1/2%), (b) the secondary market rate for three-month Certificates
of Deposit (adjusted for statutory
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reserve requirements) plus one percent (1%), and (c) the prime rate per
annum most recently announced by the Agent as its prime rate of interest
per annum, automatically fluctuating upward or downward, as the case may
be, on the day of each announcement without special notice to the Borrower
or any other Person. The Borrower acknowledges that the prime rate referred
to in clause (c) of the preceding sentence may not be the Agent's best or
lowest rate, or favored rate, and any statement, representation or warranty
in that regard or to that effect is hereby expressly disclaimed by the
Agent."
(ii) "`Termination Date' means October 9, 2004 or the earlier
termination in whole of the Commitments pursuant to Section 2.04 or Section
7.01."
(b) All references to "Duff & Phelps" in the definitions or elsewhere
in the Existing Credit Agreement shall be deleted and replaced with
references to "Fitch, Inc." All references to the "Duff & Phelps Rating"
shall likewise be references to the "Fitch Rating" from the date of the
Third Amendment.
(c) The following additional definitions are hereby added to Annex A:
(i) "`Acquisition' means a transaction resulting in (a) acquisition
by the Borrower, directly or indirectly, of all or substantially all of the
assets of a Person, or of any business or division of a Person, (b)
acquisition by the Borrower of in excess of 50% of the capital stock,
partnership interests, or other equity of any Person, or otherwise causing
such Person to become a Subsidiary of the Borrower, or (c) a merger or
consolidation or other combination of the Borrower with another Person.
(ii) `EBITDA' means Adjusted Net Income plus, to the extent same
caused a reduction in Adjusted Net Income, Interest Expense, depreciation,
amortization and income tax expense.
(iii) `Issuer' means The Chase Manhattan Bank and its successors and
assigns, or any other Bank that agrees to be an issuer of a Letter of
Credit hereunder.
(iv) `Letter of Credit' means a letter of credit issued pursuant to
Section 2.15 hereof.
(v) `Letter of Credit Liabilities' means, at any time and in respect
of any Letter of Credit, the sum of (i) the amount available for drawings
under such Letter of Credit plus (ii) the aggregate unpaid amount of all
payments made by Issuer to the beneficiary of a Letter of Credit that are
not either repaid by Borrower or added to the amounts outstanding under the
Notes.
(vi) `Proceeds of Obligations' has the meaning specified in Section
7.04.
(vii) `Restricted Payment' means any dividend or other distribution in
respect of the capital stock or other equity interest of the Borrower or
any Subsidiary of the Borrower (other than a distribution of capital stock
or other equity interests of a Subsidiary of the Borrower), including,
without limitation, any distribution resulting in the acquisition by the
Borrower of securities which would constitute treasury stock. For
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purposes of this Agreement, the amount of any Restricted Payment made in
property shall be the greater of (x) the fair market value of such property
(as determined by good faith by the board of directors (or equivalent
governing body) of the person making such Restricted Payment) and (y) the
net book value thereof on the books of such Person, in each case determined
as of the date on which such Restricted Payment is made.
(viii) `$200,000,000 Credit Agreement' means that certain Credit
Agreement dated as of October 12, 1999, by and among Kirby Corporation as
the borrower, The Chase Manhattan Bank as the administrative agent, Bank of
America, N.A., as the syndication agent and the other banks named therein,
providing for a $200,000,000 credit facility to be made available to the
named borrower by the banks party thereto, as said document may be amended,
restated or modified from time to time in accordance with the terms
thereof."
(d) The definitions of "Fixed Charges", "Modified Net Cash Flow" and
"Net Cash Flow" are hereby deleted in their entirety.
SECTION 2.06 AMENDMENT TO SCHEDULE 2.01. Schedule 2.01 reflecting the
Commitment of each Bank is hereby deleted and replaced with Schedule 2.01
attached hereto. All references to the Total Commitment or to the amount of
Loans to be made under the Existing Credit Agreement shall be changed from
$100,000,000 to $150,000,000.
SECTION 2.07 NEW SECTION 2.15. A new Section 2.15 is hereby added to the
Existing Credit Agreement to read as follows:
"Section 2.15 Letters of Credit.
(a) Subject to the terms and conditions of this Agreement, and on the
condition that aggregate Letter of Credit Liabilities shall never exceed
$10,000,000, Borrower shall have the right to, in addition to the Loans
provided for in Section 2.01 hereof, utilize the Commitments from time to
time during the term hereof by obtaining the issuance of letters of credit
for the account of Borrower if Borrower shall so request in a form and with
such accompanying documentation as Issuer my reasonably require not less
than five (5) Business Days prior to the proposed date of issuance (such
letters of credit, as any of them may be amended, supplemented, extended or
confirmed from time to time, being herein collectively called the "Letters
of Credit"). Upon the date of the issuance of a Letter of Credit, the
Issuer shall be deemed, without further action by any party hereto, to have
sold to each Bank, and each such Bank shall be deemed, without further
action by any party hereto, to have purchased from the Issuer, a
participation, to the extent of such Bank's Commitment Percentage, in such
Letter of Credit and the related Letter of Credit Liabilities, which
participation shall terminate on the earlier of the expiration date of such
Letter of Credit or the Termination Date.
(b) The following additional provisions shall apply to each Letter of
Credit:
(i) Borrower shall give Agent and the Issuer notice requesting each
issuance of a Letter of Credit hereunder as provided in Section 2.15(a)
hereof and shall furnish such additional information regarding such
transaction as Agent and the Issuer may
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reasonably request. Upon receipt of such notice, Issuer shall promptly
notify each Bank of the contents thereof and of such Bank's Commitment
Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto
the sum of (A) the aggregate outstanding principal amount of Loans plus (B)
the aggregate Letter of Credit Liabilities with respect to Letters of
Credit would exceed the Total Commitment. On each day during the period
commencing with the issuance of any Letter of Credit and until such Letter
of Credit shall have expired or been terminated, the Commitment of each
Bank shall be deemed to be utilized for all purposes hereof in an amount
equal to such Bank's Commitment Percentage of the amount then available for
drawings under such Letter of Credit (or any unreimbursed drawings under
such Letter of Credit).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment thereunder, the Issuer shall promptly notify Borrower
and each Bank as to the amount to be paid as a result of such demand and
the payment date therefor. If at any time prior to the earlier of the
expiration date of a Letter of Credit or the Termination Date, Issuer shall
have made a payment to a beneficiary of a Letter of Credit in respect of a
drawing under such Letter of Credit, each Bank will pay to Issuer promptly
upon demand by Issuer at any time during the period commencing after such
payment until reimbursement thereof in full by Borrower, an amount equal to
such Bank's Commitment Percentage of such payment, together with interest
on such amount for each day from the date of demand for such payment (or,
if such demand is made after 11:00 a.m. Houston time on such date, from the
next succeeding Business Day) to the date of payment by such Bank of such
amount at a rate of interest per annum equal to the Federal Funds Rate for
such period.
(iv) Borrower shall be irrevocably and unconditionally obligated
forthwith to reimburse Issuer, on the date on which Issuer notifies
Borrower of the date and amount of any payment by Issuer of any drawing
under a Letter of Credit, for the amount paid by Issuer upon such drawing,
without presentment, demand, protest or other formalities of any kind, all
of which are hereby waived. Such reimbursement may, subject to satisfaction
of the conditions in Sections 3.01 and 3.02 hereof and to the limitations
of the Total Commitment (after adjustment in the same to reflect the
elimination of the corresponding Letter of Credit Liability), be made by a
Borrowing of Loans. Issuer will pay to each Bank such Bank's Commitment
Percentage of all amounts received from Borrower for application in
payment, in whole or in part, in respect of any Letter of Credit, but only
to the extent such Bank has made payment to Issuer in respect of such
Letter of Credit pursuant to clause (iii) above.
(v) Borrower will pay to Agent for the account of each Bank a letter
of credit fee with respect to each Letter of Credit equal to the greater of
(x) $250 or (y) the Eurodollar Rate Applicable Margin per annum, multiplied
by the face amount of each Letter of Credit (and computed on the basis of
the actual number of days elapsed in a year composed of 360 days), in each
case for the period from and including the date of issuance of such Letter
of Credit to and including the date of expiration or termination thereof,
such fee to be due and payable quarterly in arrears based on the date of
the issuance thereof.
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Agent will pay to each Bank, promptly after receiving any payment in
respect of letter of credit fees referred to in this clause (v), an amount
equal to the product of such Bank's Commitment Percentage times the amount
of such fees. In addition to and cumulative of the above described fees,
Borrower shall pay to Issuer, quarterly in arrears, based on the date of
the issuance of the applicable Letter of Credit, a fee in an amount equal
to 1/8% of the face amount of the applicable Letter of Credit and shall pay
reasonable and customary fees imposed and expenses incurred by Issuer in
connection with the issuance or amendment of said Letter of Credit (such
fees and expense reimbursements to be retained by Issuer for its own
account).
(vi) The issuance by Issuer of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article III hereof, be
subject to the conditions precedent (A) that such Letter of Credit shall be
in such form and contain such terms as shall be reasonably satisfactory to
Issuer and Agent, and (B) that Borrower shall have executed and delivered
such applications and other instruments and agreements relating to such
Letter of Credit as Issuer and Agent shall have reasonably requested and
which are not inconsistent with the terms of this Agreement. In the event
of a conflict between the terms of this Agreement and the terms of any
application, the terms of this Agreement shall control.
(vii) Issuer will send to each Bank, immediately upon issuance of any
Letter of Credit a true and correct copy of such Letter of Credit.
(viii) Any Letter of Credit issued under this Agreement shall provide
for an expiry date which is not later than the earlier of five (5) days
prior to the Termination Date or twelve (12) months from the issuance date,
provided, Borrower may request, and Issuer agrees to issue, Letters of
Credit with expiry dates beyond five (5) days prior to the Termination Date
if at the time of issuance thereof Borrower pledges to the Agent cash
collateral in an amount and on such terms and conditions as Agent and
Issuer may request. Each Letter of Credit which is self-extending beyond
its expiration date must be cancelable upon no more than thirty (30) days'
written notice given by the Issuer to the beneficiary of such Letter of
Credit.
(ix) The issuance of a Letter of Credit shall constitute the making of
a Loan except as otherwise expressly set forth herein, and each Letter of
Credit and all related applications and other documents executed or
delivered in connection with any Letter of Credit shall be considered Loan
Documents."
SECTION 2.08 NEW SECTION 6.12. A new Section 6.12 is hereby added to the
Existing Credit Agreement to read as follows:
"Section 6.12. Restricted Payments. The Borrower will not, and will
not permit any of its Subsidiaries to, at any time, declare or make, any
Restricted Payment unless, immediately after giving effect to such action,
no Default or Event of Default would exist.
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SECTION 2.09 NEW SECTION 7.04. A new Section 7.04 is hereby added to the
Existing Credit Agreement to read as follows:
"Section 7.04. Preservation of Security for Unmatured Reimbursement
Obligations. In the event that, following (i) the occurrence and during the
continuation of an Event of Default and the exercise of any rights
available to Agent, Issuer or any Bank under the Loan Documents and (ii)
payment in full of the principal amount then outstanding of and the accrued
interest on the Loans and fees and all other amounts payable hereunder and
under the Notes, any Letters of Credit shall remain outstanding and
undrawn, Agent shall be entitled to hold (and Borrower hereby grants and
conveys to Agent a security interest in and to) all cash or other Property
("Proceeds of Remedies") realized or arising out of the exercise of any
rights available under the Loan Documents, at law or in equity, including,
without limitation, the proceeds of any foreclosure, as collateral for the
payment of any amounts due or to become due under or in respect of such
outstanding Letters of Credit. Such Proceeds of Remedies shall be held by
the Agent for the ratable benefit of the Banks. The rights, titles,
benefits, privileges, duties and obligations of Agent with respect thereto
shall be governed by the terms and provisions of this Agreement. Agent may,
but shall have no obligation to, invest any such Proceeds of Remedies in
such manner as Agent, in the exercise of its sole discretion, deems
appropriate. Such Proceeds of Remedies shall be applied to amounts owing in
respect of any such Letters of Credit and/or the payment of Borrower's or
any Bank's obligations under any such Letter of Credit when such Letter of
Credit is drawn upon. Nothing in this Section 7.04 shall cause or permit an
increase in the maximum amount permitted to be outstanding from time to
time under this Agreement."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.01 CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon receipt by the Agent on the date of such receipt (the "Effective
Date") of the following, each in form and substance reasonably satisfactory to
the Agent and in such number of counterparts as may be reasonably requested by
the Agent:
(a) This Amendment duly executed by the Borrower and each of the
Banks.
(b) Notes for each Bank evidencing the increased Commitment of the
Banks as shown on Schedule 2.01, duly executed by the Borrower.
(c) A certificate of the secretary or an assistant secretary of the
Borrower certifying (i) true and correct copies of resolutions adopted by
the Board of Directors of the Borrower (A) authorizing the execution,
delivery and performance by the Borrower of this Amendment, and (B)
authorizing officers of the Borrower to execute and deliver this Amendment,
and (ii) the incumbency and specimen signatures of the officers of the
Borrower executing this Amendment or any other document on behalf of the
Borrower.
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(d) Certificates of appropriate public officials as to the existence,
good standing and/or authority to do business of the Borrower and Kirby
Inland Marine, Inc., in the state of the respective incorporation of each
and in Texas.
(e) An Amendment to the $200,000,000 Credit Agreement, amending it
such that the financial covenants contained therein are the same as those
contained in the Existing Credit Agreement, as amended by this Amendment,
and containing a modified definition of the Existing Credit Agreement to
include a reference to all amendments, modifications and restatements
thereto or thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank Group to enter into this Amendment, the
Borrower hereby represents and warrants to the Bank Group as follows:
SECTION 4.01 EXISTING CREDIT AGREEMENT. After giving effect to the
execution and delivery of this Amendment and the consummation of the
transactions contemplated hereby, and with this Amendment constituting one of
the Loan Documents, the representations and warranties set forth in Article IV
of the Existing Credit Agreement are true and correct on the date hereof as
though made on and as of such date.
SECTION 4.02 NO DEFAULT. After giving effect to the execution and delivery
of this Amendment and the consummation of the transactions contemplated hereby,
no Default or Event of Default has occurred and is continuing as of the date
hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 BANKS PARTY TO CREDIT AGREEMENT. Certain of the banks
executing the Existing Credit Agreement originally as Banks no longer wish to be
party thereto (the "Existing Banks") and, from the date of this Amendment
forward, the undersigned parties signing as Banks (the "New Banks") constitute
the Banks under the Existing Credit Agreement. The Existing Banks and the New
Banks (acting through the Agent) shall make appropriate adjustments in payments
for periods prior to the Effective Date such that from and after the Effective
Date the New Banks shall constitute all of the Banks under the Existing Credit
Agreement.
SECTION 5.02 AFFIRMATION OF LOAN DOCUMENTS. The Borrower hereby
acknowledges and agrees that all of its obligations under the Existing Credit
Agreement, as amended hereby, and the other Loan Documents shall remain in full
force and effect following the execution and delivery of this Amendment, and
such obligations are hereby affirmed, ratified and confirmed by the Borrower.
SECTION 5.03 COSTS AND EXPENSES. The Borrower agrees to pay on demand all
reasonable costs and expenses incurred by the Agent and the Funds Administrator
in connection with the preparation, execution, delivery, filing, administration
and recording of this Amendment and any other agreements delivered in connection
with or pursuant to this Amendment,
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including, without limitation, the reasonable fees and out-of-pocket expenses of
Andrews & Kurth, Mayor, Day, Caldwell & Keeton L.L.P., special counsel to the
Agent.
SECTION 5.04 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the Borrower and the Bank Group and their respective
successors and assigns.
SECTION 5.05 CAPTIONS. The captions in this Amendment have been inserted
for convenience only and shall be given no substantive meaning or significance
whatsoever in construing the terms and provisions of this Amendment.
SECTION 5.06 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered either in original, facsimile or electronic
form, shall be deemed to be an original but all of which taken together shall
constitute but one and the same instrument.
SECTION 5.07 GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
SECTION 5.08 FINAL AGREEMENT OF THE PARTIES. THE EXISTING CREDIT AGREEMENT
(INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, THE NOTES AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BORROWER
KIRBY CORPORATION
By: /s/ Norman W. Nolen
-------------------------------------------------
Name: Norman W. Nolen
Title: Executive Vice President
BANKS
THE CHASE MANHATTAN BANK, successor by merger to Chase
Bank of Texas, N.A. (formerly known as Texas Commerce
Bank National Association), as Funds Administrator, as
Agent, and individually as one of the Banks
By: /s/ H. David Jones
-------------------------------------------------
Name: H. David Jones
Title: Vice President
FIRST UNION NATIONAL BANK, as successor to CoreStates
Bank, N.A.
By: /s/ Roy O. Young
-------------------------------------------------
Name: Roy O. Young
Title: Vice President
WELLS FARGO BANK (TEXAS), N.A.
By: /s/ Warren R. Ross
-------------------------------------------------
Name: Warren R. Ross
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Claire Liu
-------------------------------------------------
Name: Claire Liu
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Joey Powell
-------------------------------------------------
Name: Joey Powell
Title: Officer
By: /s/ John Mearns
-------------------------------------------------
Name: John Mearns
Title: Vice President & Manager
FLEET NATIONAL BANK
By: /s/ Alicia Szendiuch
-------------------------------------------------
Name: Alicia Szendiuch
Title: Managing Director
DEN NORSKE BANK
By: /s/ Sanjiv Nayar
-------------------------------------------------
Name: Sanjiv Nayar
Title: Vice President
By: /s/ Theodore S. Jadick, Jr.
-------------------------------------------------
Name: Theodore S. Jadick, Jr.
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD. NEW YORK BRANCH
By: /s/ Michael N. Oakes
-------------------------------------------------
Name: Michael N. Oakes
Title: Sr. Vice President, Houston Office
BNP PARIBAS
By: /s/ Mike Shryock
-------------------------------------------------
Name: Mike Shryock
Title: Vice President
By: /s/ Aurora Abella
-------------------------------------------------
Name: Aurora Abella
Title: Vice President
COMERICA BANK
By: /s/ T. Bancroft Mattei
-------------------------------------------------
Name: T. Bancroft Mattei
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Carolyn D. Grant
-------------------------------------------------
Name: Carolyn D. Grant
Title: Vice President
SCHEDULE 2.01
ALLOCATION AND LENDER NAMES
1. THE CHASE MANHATTAN BANK
Allocation: .................................................$16,000,000.00
The Chase Manhattan Bank
712 Main Street
Houston, Texas 77002
Attention: Carl Luna
Telecopier: (713) 216-2339
2. BANK OF AMERICA, N.A.
Allocation: .................................................$15,000,000.00
Bank of America, N.A.
333 Clay Street, Suite 4550
Houston, Texas 77002-4103
Attention: Claire Liu
Telecopier: (713) 651-4807
3. FIRST UNION NATIONAL BANK
Allocation: .................................................$15,000,000.00
First Union National Bank
One South Penn Square
Philadelphia, Pennsylvania 19101
Attention: Roy O. Young
Telecopier: (267) 321-6300
4. FLEET NATIONAL BANK
Allocation: .................................................$15,000,000.00
Fleet National Bank
100 Federal Street
MADE 10008D
Boston, Massachusetts 02110
Attention: Suzanne Chomiczewski
Telecopier: (617) 434-1955
5. WELLS FARGO BANK (TEXAS), N.A.
Allocation: .................................................$15,000,000.00
Wells Fargo Bank (Texas ), N.A.
1000 Louisiana Street, 3rd Floor
Houston, Texas 77002
Attention: Warren Ross
Telecopier: (713) 739-1082
6. DEN NORSKE BANK
Allocation: .................................................$15,000,000.00
Den Norske Bank
200 Park Avenue, 31st Floor
New York, New York 10066
Attention: Sanjiv Nayer
Telecopier: (212) 681-3900
7. THE INDUSTRIAL BANK OF JAPAN, LTD.
Allocation: .................................................$15,000,000.00
The Industrial Bank of Japan, Ltd.
One Houston Center
1221 McKinney, Suite 4100
Houston, Texas 77010
Attention: Mike Oakes
Telecopier: (713) 651-9209
8. BNP PARIBAS
Allocation: .................................................$14,000,000.00
BNP Paribas
1200 Smith Street, Suite 3100
Houston, Texas 77002
Attention: Craig Pierce
Telecopier: (713) 659-5228
9. THE BANK OF TOKYO-MITSUBISHI, LTD.
Allocation: .................................................$10,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd.
1100 Louisiana Street, Suite 2800
Houston, Texas 77002
Attention: Joey Powell
Telecopier: (713) 655-3855
10.COMERICA BANK
Allocation: .................................................$10,000,000.00
Comerica Bank
4100 Spring Valley Road, Suite 400
Dallas, Texas 75244
Attention: Bancroft Mattei
Telecopier: (972) 361-2550
11.THE NORTHERN TRUST COMPANY
Allocation: .................................................$10,000,000.00
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Carolyn Grant
Telecopier: (312) 444-7023
Total Allocation: ..........................................$150,000,000.00