CONFORMED COPY
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KIRBY CORPORATION
$200,000,000
Floating Rate Senior Notes, Series 2005-A, due February 28, 2013
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FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
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Dated as of May 31, 2005
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FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST SUPPLEMENT is entered into as of May 31, 2005 (this
"Supplement") between KIRBY CORPORATION, a Nevada corporation (the "Company"),
and the Purchasers listed in the attached Schedule A (the "Purchasers").
R E C I T A L S
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A. The Company has entered into a Note Purchase Agreement dated as of
February 15, 2003 with the purchasers listed in Schedule A thereto (as
heretofore supplemented, the "Note Purchase Agreement"); and
B. The Company desires to issue and sell, and the Purchasers desire to
purchase, an additional series of Notes (as defined in the Note Purchase
Agreement) pursuant to the Note Purchase Agreement and in accordance with the
terms set forth below;
NOW, THEREFORE, the Company and the Purchasers agree as follows:
1. Authorization of the New Series of Notes.
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(a) Amount; Designation. The Company has authorized the issue and
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sale of $200,000,000 aggregate principal amount of Notes to be
designated as its Floating Rate Senior Notes, Series 2005-A, due February
28, 2013 (the "Series 2005-A Notes", such term to include any such Notes
issued in substitution therefor pursuant to Section 13 of the Note Purchase
Agreement). The Series 2005-A Notes shall be substantially in the form set
out in Exhibit 1 to this Supplement, with such changes therefrom, if any,
as may be approved by the Purchasers and the Company.
(b) Adjusted Libor Rate. Section 1.2(b) of the Note Purchase
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Agreement shall apply to the Series 2005-A Notes in its entirety,
except the reference in the definition of "Adjusted LIBOR Rate" to "1.2%"
shall be deemed to be a reference to 0.50%.
(c) Determination of the Adjusted LIBOR Rate. The reference in
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Section 1.2(c) of the Note Purchase Agreement to "Series 2003-A Notes"
shall be deemed to be reference to the Series 2005-A Notes.
(d) Interest Period. "INTEREST PERIOD" means for any period for
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which interest is to be calculated or paid on the Series 2005-A Notes,
the period commencing on the date of an interest payment, or on the date of
Closing in the case of the first such period, continuing up to, but not
including, the next February 28, May 28, August 28 or November 28, as the
case may be, or if such date is not a Business Day, the next succeeding
Business Day.
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2. Sale and Purchase of Series 2005-A Notes. Subject to the terms and
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conditions of this Supplement and the Note Purchase Agreement, the Company will
issue and sell to each of the Purchasers, and the Purchasers will purchase from
the Company, at the Closing provided for in Section 3, Series 2005-A Notes in
the principal amount specified opposite their respective names in the attached
Schedule A at the purchase price of 100% of the principal amount thereof. The
obligations of the Purchasers hereunder are several and not joint obligations
and no Purchaser shall have any liability to any Person for the performance or
non-performance by any other Purchaser hereunder.
3. Closing. The sale and purchase of the Series 2005-A Notes to be
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purchased by the Purchasers shall occur at the offices of Gardner Carton &
Douglas LLP, 191 North Wacker Drive, Suite 3700, Chicago, Illinois 60606-1698 at
9:00 a.m., Chicago time, at a closing (the "Closing") on May 31, 2005 or on such
other Business Day thereafter on or prior to June 15, 2005 as may be agreed upon
by the Company and the Purchasers. At the Closing, the Company will deliver to
each Purchaser the Series 2005-A Notes to be purchased by it in the form of a
single Note (or such greater number of Series 2005-A Notes in denominations of
at least $500,000 as such Purchaser may request) dated the date of the Closing
and registered in its name (or in the name of its nominee), against delivery by
such Purchaser to the Company or its order of immediately available funds in the
amount of the purchase price therefor by wire transfer of immediately available
funds for the account of the Company to account number 00100359554 at JPMorgan
Chase Bank, 712 Main Street, Houston, Texas 77002, ABA No. 113000609. If at
the Closing the Company shall fail to tender such Series 2005-A Notes to a
Purchaser as provided above in this Section 3, or any of the conditions
specified in Section 4 of the Note Purchase Agreement, as modified or expanded
by Section 4 hereof, shall not have been fulfilled to such Purchaser's
satisfaction, such Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights it may have
by reason of such failure or such nonfulfillment.
4. Conditions to Closing. Each Purchaser's obligation to purchase and
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pay for the Series 2005-A Notes to be sold to it at the Closing is subject to
the fulfillment to its satisfaction, prior to or at the Closing, of the
conditions set forth in Section 4 of the Note Purchase Agreement, as hereafter
modified, and to the following additional conditions:
(a) References in Section 4 of the Note Purchase Agreement to
"Series 2003-A Notes" shall be deemed to be references to the Series
2005-A Notes and references to the "Closing" shall be deemed to refer to
the Closing as such term is defined in this Supplement;
(b) The reference in Section 4.2 to the "Memorandum" shall be
deemed to be a reference to the term "Memorandum" as such term is
defined in Schedule 5 to this Supplement and the reference to "Schedule
5.14" shall be deemed to be a reference to Schedule 5.14 hereto;
(c) The legal opinions, and forms thereof, called for by Section
4.4 of the Note Purchase Agreement shall be appropriately modified to
reflect this Supplement and
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the transactions contemplated herein and the rendering of the legal
opinion by Fulbright & Jaworski L.L.P. in substitution of the opinion by
Jenkens & Gilchrist;
(d) References in the Note Purchase Agreement to "Other
Purchasers" shall be deemed to refer to the Purchasers hereunder; and
(e) At least three Business Days prior to the date of the Closing,
each Purchaser shall have received a copy of written instructions
signed by a Responsible Officer on letterhead of the Company confirming the
information specified in Section 3 including (i) the name and address of
the transferee bank, (ii) such transferee bank's ABA number and (iii) the
account name and number into which the purchase price for the Notes is to
be deposited.
5. Representations and Warranties of the Company. The Company
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represents and warrants to the Purchasers that each of the representations and
warranties contained in Section 5 of the Note Purchase Agreement is true and
correct as of the date hereof (i) except that all references to "Purchaser" and
"you" therein shall be deemed to refer to the Purchasers hereunder, all
references to "this Agreement" shall be deemed to refer to the Note Purchase
Agreement as supplemented by this Supplement, and all references to "Series
2003-A Notes" therein shall be deemed to refer to the Series 2005-A Notes, and
(ii) except for changes to such representations and warranties or the Schedules
referred to therein, which changes are set forth in the attached Schedule 5.
6. Representations of the Purchasers. Each Purchaser confirms to the
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Company that the representations set forth in Section 6 of the Note Purchase
Agreement are true and correct as to such Purchaser.
7. Mandatory Prepayment of the Series 2005-A Notes. The Series 2005-A
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Notes are not subject to mandatory prepayment by the Company.
8. Optional Prepayments of the Series 2005-A Notes. The Company may,
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at its option, upon notice as provided below, prepay at any time all, or from
time to time any part of, the Series 2005-A Notes in an amount not less than
$1,000,000 in the aggregate in the case of a partial prepayment, at 100% of the
principal amount so prepaid, plus interest on such principal amount accrued to
such prepayment date, plus the prepayment premium set forth below and, if such
prepayment is to occur on any date other than an Interest Payment Date, the
LIBOR Breakage Amount, if any.
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IF PREPAID DURING THE PERIOD PREPAYMENT PREMIUM
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May 31, 2005 through May 28, 2006 2.0%
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May 29, 2006 through May 28, 2007 1.0%
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May 29, 2007 and thereafter 0.0%
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The Company will give each holder of Series 2005-A Notes written notice of each
optional prepayment under this Section 8 not less than 30 days and not more than
60 days prior to the date fixed for such prepayment. Each such notice shall
specify such date, the aggregate principal amount of the Series 2005-A Notes to
be prepaid on such date, the principal amount of each
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Series 2005-A Note held by such holder to be prepaid (determined in accordance
with Section 8.3 of the Note Purchase Agreement), and the interest to be paid on
the prepayment date with respect to such principal amount being prepaid.
9. Applicability of Note Purchase Agreement. Except as otherwise
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expressly provided herein (and expressly permitted by the Note Purchase
Agreement), all of the provisions of the Note Purchase Agreement are
incorporated by reference herein and shall apply to the Series 2005-A Notes as
if expressly set forth in this Supplement. For purposes of the Series 2005-A
Notes and any future series or tranche of Notes issued pursuant to a supplement
to the Note Purchase Agreement:
(a) Section 22.2 of the Note Purchase Agreement shall read in its
entirety as follows:
"22.2 PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Series 2005-A Notes to the
contrary notwithstanding, any payment of principal of or LIBOR Breakage Amount
or interest on any Note that is due on a date other than a Business Day shall be
made on the next succeeding Business Day and shall include the additional days
elapsed in the computation of the interest payable on such next succeeding
Business Day."
(b) The definition of Business Day in Schedule B of the Note Purchase
Agreement shall read in its entirety as follows:
"BUSINESS DAY" means (a) for the purposes of Section 8.6 and the
determination of LIBOR only, any day other than a Saturday, a Sunday or a day on
which commercial banks in London, England are required or authorized to be
closed, and (b) for the purposes of any other provision of this Agreement, any
day other than a Saturday, a Sunday or a day on which commercial banks in
Chicago, Illinois or New York City are required or authorized to be closed."
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IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Supplement to be executed and delivered as of the date set forth above.
KIRBY CORPORATION
By: /s/ Norman W. Nolen
Name: Norman W. Nolen
Title: Executive Vice President and
Chief Financial Officer
S-1
MONUMENTAL LIFE INSURANCE COMPANY
By: /s/ Bill Henricksen
Name: Bill Henricksen
Title: Vice President
S-2
By: PPM AMERICA, INC., as attorney in fact, on behalf of Jackson National
Life Insurance Company
By: /s/ Mark Staub
Name: Mark Staub
Title: Vice President
By: PPM AMERICA, INC., as attorney in fact, on behalf of Jackson National
Life Insurance Company of New York
By: /s/ Mark Staub
Name: Mark Staub
Title: Vice President
S-3
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: /s/ Stephen R. De Motto
Name: Stephen R. De Motto
Title: Investment Officer
S-4
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Robert B. Bodett
Name: Robert B. Bodett
By: /s/ Jerry D. Zinkula
Name: Jerry D. Zinkula
Authorized Signatories
ALLSTATE INSURANCE COMPANY
By: /s/ Robert B. Bodett
Name: Robert B. Bodett
By: /s/ Jerry D. Zinkula
Name: Jerry D. Zinkula
Authorized Signatories
S-5
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By: /s/ Deborah B. Wiacek
Name: Deborah B. Wiacek
Title: Managing Director
S-6
PHOENIX LIFE INSURANCE COMPANY
By: /s/ Carole A. Masters
Name: /s/ Carole A. Masters
Title: Vice President
S-7
HARTFORD LIFE INSURANCE COMPANY
By: HARTFORD INVESTMENT SERVICES, INC.
Its Agent and Attorney-in-Fact
By: /s/ Daniel C. Leimbach
Name: Daniel C. Leimbach
Title: Senior Vice President
S-8
THE TRAVELERS INSURANCE COMPANY
By: /s/ Allen Cantrell
Name: Allen Cantrell
Title: Investment Officer
S-9
Schedule 5
to Supplement
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EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES
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SECTION
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5.3 In the first sentence, change the date of the Private Placement
Memorandum from January 2003 to April 2005.
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In the fourth sentence, change September 30, 2002 to March 31, 2005.
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5.4 Replace Schedule 5.4 with the attached Schedule 5.4.
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5.5 Replace Schedule 5.5 with the attached Schedule 5.5.
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5.8 Replace Schedule 5.8 with the attached Schedule 5.8.
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5.9 Change the date in the last sentence from December 31, 1998 to
December 31, 2000.
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5.14 Replace Schedule 5.14 with the attached Schedule 5.14.
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5.15 In the first sentence, change December 31, 2002 to April 30, 2005.
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Replace Schedule 5.15 with the attached Schedule 5.15.
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Schedule 5 to Supplement
SUBSIDIARIES AND AFFILIATES
SUBSIDIARIES ORGANIZED OWNERSHIP
AFRAM Carriers, Inc. Delaware 100%
Dixie Offshore Transportation Company Delaware 100%
Engine Systems, Inc.(1) Delaware 100%
KIM Holdings, Inc. Delaware 100%
KIM Partners, LLC(2) Louisiana 100%
Kirby Corporate Services, LLC Delaware 100%
Kirby Inland Marine, LP(3) Delaware 100%
Kirby Engine Systems, Inc. Delaware 100%
Kirby Tankships, Inc. Delaware 100%
Kirby Terminals, Inc. Texas 100%
Marine Systems, Inc.(1) Louisiana 100%
Rail Systems, Inc.(1) Delaware 100%
Sabine Transportation Company Delaware 100%
Dixie Carriers, Inc.(4) Texas 100%
Mariner Reinsurance Company Limited Bermuda 100%
Matagorda Terminal, Ltd.(5) Texas 100%
Hollywood Marine, No. 3., Ltd.(4) Texas 75%
Hollywood Chem 107, Ltd.(4) Texas 83.4%
Hollywood Chem 108, Ltd.(4) Texas 87.5%
Hollywood Marine 1004-7, Ltd.(4) Texas 83.4%
Hollywood Marine 1008-14, Ltd.(4) Texas 87.5%
Hollywood Marine 3009-14, Ltd.(4) Texas 87.5%
Hollywood Marine 3015, Ltd.(4) Texas 83.4%
Hollywood/Texas Olefins, Ltd.(4) Texas 50%
Marine Highways, LLC Delaware Variable
AFFILIATES ORGANIZED OWNERSHIP
BargeNet, LLC(4) Delaware 33 1/3%
Bolivar Terminal Co., Inc.(4) Texas 50%
Dixie Fuels Limited(6) Texas 35%
The Hollywood Camp, L.L.C.(4) Texas 50%
Osprey Line, L.L.C. Texas 33 1/3%
Schedule 5.4
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(1) Owned by Kirby Engine Systems, Inc.
(2) Owned by KIM Holdings, Inc.
(3) Owned by KIM Holdings, Inc. and KIM Partners, LLC
(4) Owned by Kirby Inland Marine, LP
(5) Owned by Kirby Inland Marine, LP and Kirby Terminals, Inc.
(6) Owned by Dixie Offshore Transportation Company
DIRECTORS OF KIRBY CORPORATION
C. Sean Day
Bob G. Gower
Walter E. Johnson
William M. Lamont, Jr.
C. Berdon Lawrence
George A. Peterkin, Jr.
Joseph H. Pyne
Robert G. Stone, Jr.
Richard C. Webb
SENIOR OFFICERS OF KIRBY CORPORATION
C. Berdon Lawrence - Chairman of the Board
Joseph H. Pyne - President & Chief Executive Officer
Norman W. Nolen - Executive Vice President & Chief Financial Officer
Mark R. Buese - Senior Vice President - Administration
G. Stephen Holcomb - Vice President - Investor Relations
Howard G. Runser - Vice President - Information Technology
Jack M. Sims - Vice President - Human Resources
Ronald A. Dragg - Controller
Schedule 5.4
SCHEDULE 5.5
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FINANCIAL STATEMENTS
Kirby Corporation Annual Reports on Form 10-K for fiscal years 2000 through
2004.
Kirby Corporation Quarterly Report on Form 10-Q for the quarter ended March 31,
2005.
Schedule 5.5
SCHEDULE 5.8
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LITIGATION
In 2000, two subsidiaries of the Company and a group of approximately 45
other companies were notified that they are Potentially Responsible Parties
("PRPs) under the Comprehensive Environmental Response, Compensation and
Liability Act of 1981, as amended ("CERCLA"), with respect to a Superfund site,
the Palmer Barge Line site ("Palmer"), located in Port Arthur, Texas. In prior
years, Palmer had provided tank barge cleaning services to various subsidiaries
of the Company. The Company and three other PRPs have entered into an agreement
with the United States Environmental Protection Agency ("EPA") to perform a
remedial investigation and feasibility study. Based on information currently
available, the Company is unable to ascertain the extent of its exposure, if
any, in this matter.
In 2003, the Company and certain subsidiaries received a Request For
Information ("RFI") from the EPA under CERCLA with respect to a Superfund site,
the Gulfco site, located in Freeport, Texas. In prior years, a company
unrelated to Gulfco operated at the site and provided tank barge cleaning
services to various subsidiaries of the Company. Based on information currently
available, the Company is unable to ascertain the extent of its exposure, if
any, in this matter.
In 2004, the Company and certain subsidiaries received an RFI from the EPA
under CERCLA with respect to a Superfund site, the State Marine site, located in
Port Arthur, Texas. Based on information currently available, the Company is
unable to ascertain the extent of its exposure, if any, in this matter.
Schedule 5.8
SCHEDULE 5.14
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USE OF PROCEEDS
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Balance Private Placement Balance
4/30/05 Proceeds After Paydown
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250,000,000 Floating Rate Senior $200,000,000 $ 200,000,000 $ -0-
Notes, Series 2003-A, due
February 28, 2013
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Schedule 5.14
SCHEDULE 5.15
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EXISTING DEBT
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Balance at
4/30/05
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$250,000,000 Floating Rate Senior Notes, Series 2003-A, due February 28, 2013 $200,000,000
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$150,000,000 Revolving Credit Facility, due December 9, 2007 -0-
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$10,000,000 Bank of America line of credit, due November 2, 2005 2,500,000
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$5,000,000 BNP Paribas revolving credit note, due December 31, 2005 5,000,000
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Real estate lien note, $590.84 monthly installments (principal and interest) 39,000
through 10/01/12
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$207,539,000
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Schedule 5.15
Exhibit 1 to
Supplement
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[FORM OF SERIES 2005-A NOTE]
KIRBY CORPORATION
FLOATING RATE SENIOR NOTE
SERIES 2005-A, DUE FEBRUARY 28, 2013
No. [_____] [Date]
$[_______] PPN: 497266 A @ 5
FOR VALUE RECEIVED, the undersigned, KIRBY CORPORATION (herein called
the "Company"), a corporation organized and existing under the laws of the State
of Nevada, promises to pay to [ ], or registered assigns, the principal
sum of $[ ] on February 28, 2013, with interest (computed on the
basis of a 360-day year and the actual number of days elapsed) (a) on the unpaid
principal thereof at a floating rate equal to the Adjusted LIBOR Rate from time
to time, payable quarterly on each February 28, May 28, August 28 and November
28, commencing with the February, May, August or November next succeeding the
date hereof until the principal shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any LIBOR Breakage Amount at the Default Rate until paid.
Payments of principal of, interest on and any LIBOR Breakage Amount
with respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to a Note Purchase Agreement dated as of February 15,
2003, as supplemented by a First Supplement dated as of May 31, 2005 (as
supplemented, the "Note Purchase Agreement"), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Reference is made to the Note Purchase Agreement for the definitions used herein
and the method of calculating the interest and other payments to be made or in
respect of this Note. Each holder of this Note will be deemed, by its
acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreement and (ii) to have made the
representations and agreement set forth in Section 6 of the Note Purchase
Agreement.
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Exhibit 1
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable LIBOR Breakage Amount) and with the effect provided in the Note
Purchase Agreement.
Notwithstanding any other provision of this Note or the Note Purchase
Agreement, in no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest that may be charged on this Note
under applicable law, and this Note is expressly made subject to the provisions
of the Note Purchase Agreement which more fully set out the limitations on how
interest may be accrued, charged or paid on this Note.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
KIRBY CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
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Exhibit 1