EXHIBIT 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated effective as of November
5, 2001 (the "FIRST 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 administrative agent (the "ADMINISTRATIVE AGENT"), and Bank of
America, N.A., as syndication agent (the "SYNDICATION AGENT").
PRELIMINARY STATEMENT
(1) Pursuant to that certain Credit Agreement dated as of October 12,
1999, among the Borrower, the banks named therein, the Administrative Agent, the
Syndication Agent, and the other agents therein named, said parties made a
revolving credit facility converting to a term facility available to the
Borrower upon the terms and conditions set forth therein (the "CREDIT
AGREEMENT").
(2) The Borrower has requested that certain provisions of the Credit
Agreement be amended, and the undersigned Banks and the Administrative 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 Credit
Agreement, and not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement. Upon the effectiveness of this Amendment, each
reference (a) in the Credit Agreement to "this Agreement," "hereunder," "herein"
or words of like import shall mean and be a reference to the Credit Agreement,
as amended hereby, (b) in the Notes and the other Loan Documents to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended
hereby, and (c) in the Loan Documents to any term defined by reference to the
Credit Agreement shall mean and be a reference to such term as defined in the
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.
FIRST AMENDMENT
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
SECTION 2.01 AMENDMENT TO SECTION 6.01. SECTION 6.01 is amended and
restated to read as follows:
"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 the ratio of 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 the periods indicated:
12/31/01 through 12/31/02 3.25 to 1
03/31/03 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 2.02 AMENDMENT TO SECTION 6.02(A)(I). SECTION 6.02(A)(I) is
amended and restated to read as follows: "(i) Debt of the Borrower under the
Loan Documents;".
SECTION 2.03 AMENDMENT TO ANNEX A - DEFINITIONS.
(a) The following definition is hereby added to Annex A:
"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.
(b) The following definition is hereby amended and restated as
follows:
"Existing Credit Agreement" means the Credit Agreement dated
as of September 19, 1997, by and among the Borrower, 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 and Agent and the other Banks therein named, as amended
by the First Amendment dated as of January 30, 1998, by the Second
Amendment dated as of November 30, 1998, by the Third Amendment dated
as of
2 FIRST AMENDMENT
November 5, 2001, and as may be further amended, restated, or modified
from time to time.
(c) The definitions of "Modified Net Cash Flow" and "Net Cash
Flow" are hereby deleted in their entirety.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.01 CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon receipt by the Administrative Agent of the following, each in form and
substance reasonably satisfactory to the Administrative Agent and in such number
of counterparts as may be reasonably requested by the Administrative Agent:
(a) This Amendment duly executed by the Borrower and
the Majority Banks.
(b) 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.
(c) The Borrower shall have paid to the
Administrative Agent for the account of each Bank executing this
Amendment, an amendment fee equal to five (5) basis points times each
such Bank's unpaid principal amount of Loans.
(d) A Third Amendment to the Existing Credit
Agreement shall be effective as of the effective date hereof, amending
the Existing Credit Agreement so that the financial covenants contained
in Section 6.01 of the Existing Credit Agreement as amended by such
Third Amendment are the same as the financial covenants contained in
Section 6.01 of the Credit Agreement as hereby amended.
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 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 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.
3 FIRST AMENDMENT
ARTICLE V
MISCELLANEOUS
SECTION 5.01 AFFIRMATION OF LOAN DOCUMENTS. The Borrower hereby
acknowledges and agrees that all of its obligations under the 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 5.02 COSTS AND EXPENSES. The Borrower agrees to pay on demand
all reasonable costs and expenses incurred by the Administrative Agent and the
Syndication Agent 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, including, without
limitation, the reasonable fees and out-of-pocket expenses of Haynes and Boone,
LLP, special counsel to the Syndication Agent.
SECTION 5.03 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 5.04 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 5.05 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 5.06 GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
SECTION 5.07 FINAL AGREEMENT OF THE PARTIES. THE 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.
4 FIRST AMENDMENT
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
THE CHASE MANHATTAN BANK,
successor by merger to Chase Bank of
Texas, N.A., as Administrative Agent and as
a Bank
By: /s/ H. David Jones
-----------------------------------------
Name: H. David Jones
Title: Vice President
BANK OF AMERICA, N.A., as
Syndication Agent and as a Bank
By: /s/ Claire M. Liu
-----------------------------------------
Name: Claire M. Liu
Title: Managing Director
BANK ONE, N.A.
By: /s/ J. V. Carr, Jr.
-----------------------------------------
Name: J. V. Carr, Jr.
Title: First Vice President:
SIGNATURE PAGE TO THE FIRST AMENDMENT
FIRST UNION NATIONAL BANK
By: /s/ Roy O. Young
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Name: Roy O. Young
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW
YORK BRANCH
By: /s/ Michael N. Oakes
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Name: Michael N. Oakes
Title: Senior Vice President, Houston Office
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ Warren R. Ross
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Name: Warren R. Ross
Title: Vice President
FLEET NATIONAL BANK (F/K/A BANKBOSTON, N.A.)
By: /s/ Alicia Szendiuch
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Name: Alicia Szendiuch
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ Joey Powell
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Name: Joey Powell
Title: Officer
By: /s/ John Mearns
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Name: John Mearns
Title: Vice President & Manager
SIGNATURE PAGE TO THE FIRST AMENDMENT
DEN NORSKE BANK ASA
By: /s/ Sanjiv Nayar
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Name: Sanjiv Nayar
Title: Vice President
By: /s/ Barbara Gronquist
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Name: Barbara Gronquist
Title: Senior Vice President
GUARANTY BANK
By: /s/ Scott L. Brewer
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Name: Scott L. Brewer
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Corwin Dupree
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Name: Cowin Dupree
Title: Bank Officer
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Gary Tolbert
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Name: Gary Tolbert
Title: SVP
BANCO ESPIRITO SANTO, S.A.
By: /s/ Terry H. Hull
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Name: Terry H. Hull
Title: Senior Vice President
By: /s/ Leon Stark
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Name: Leon Stark
Title: Senior Vice President
Deputy General Manager
SIGNATURE PAGE TO THE FIRST AMENDMENT