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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
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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 suc
