Exhibit 10.07
SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED
UNDERWRITING AND CONTINUING INDEMNITY AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
UNDERWRITING AND CONTINUING INDEMNITY AGREEMENT dated as of April 24, 2001 (the
"AMENDMENT") is entered into by and among (i) GREAT LAKES DREDGE & DOCK
CORPORATION, a Delaware corporation ("HOLDINGS"), and the SUBSIDIARIES of
HOLDINGS signatories hereto (collectively with HOLDINGS, the "INDEMNITORS"), and
(ii) RELIANCE INSURANCE COMPANY, a Pennsylvania corporation, UNITED PACIFIC
INSURANCE COMPANY, a Pennsylvania corporation, RELIANCE NATIONAL INSURANCE
COMPANY, a Delaware corporation, and RELIANCE SURETY COMPANY, a Delaware
corporation (collectively, the foregoing parties are referred to herein as
"RELIANCE").
WITNESSETH:
WHEREAS, the INDEMNITORS and RELIANCE are parties to a certain
Second Amended and Restated Underwriting and Continuing Indemnity Agreement
dated as of August 19, 1998 (the "AGREEMENT");
WHEREAS, in connection with the proposed acquisition by
HOLDNGS of 80% of the equity interests of NORTH AMERICAN SITE DEVELOPERS, INC.,
a Massachusetts corporation ("NASDI"), (i) HOLDINGS will issue additional Debt
(as such term is defined in the Agreement) in an aggregate principal amount of
$40,000,000 pursuant to the terms of the 1998 Debt Indenture (as such term is
defined in the Agreement), (ii) NASDI will issue promissory notes in an
aggregate principal amount equal to $3,000,000 to management stockholders of
NASDI, which promissory notes will be guaranteed by HOLDINGS, and (iii) NASDI
will issue a promissory note in an aggregate principal amount equal to
approximately $32,000,000 to HOLDINGS;
WHEREAS, the INDEMNITORS have requested RELIANCE to consent
to, and to amend certain provisions of the Agreement to permit, such
acquisition, such incurrence of additional Debt and such issuance of promissory
notes; and
WHEREAS, RELIANCE is willing to amend certain provisions of
the Agreement and to consent to such acquisition, such incurrence of additional
Debt and such issuance of promissory notes, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises, and
intending to be legally bound hereby, the INDEMNITORS and RELIANCE hereby agree
as follows:
SECTION 1. CONSENT TO INCURRENCE OF ADDITIONAL DEBT.
RELIANCE hereby consents:
(a) to HOLDING'S incurrence of additional Debt in a principal
amount not to exceed $40,000,000, PROVIDED, HOWEVER, that (i) such
incurrence of Debt shall be pursuant to the terms of the 1998 Debt
Indenture, (ii) an amount not to exceed $35,000,000 from the proceeds
received by HOLDINGS in connection with the incurrence of such Debt
shall be used by HOLDINGS to acquire 80% of the equity interests of
NASDI, and (iii) an amount not to exceed $5,000,000 from the proceeds
received by HOLDINGS in connection with the incurrence of such Debt
shall be used by HOLDINGS to pay fees and expenses in connection with
such acquisition and to repay a portion of HOLDING'S outstanding
revolving loan balance under the Bank Loan Facility (as defined in the
Underwriting Agreement); and
(b) pursuant to Section 6.21 of the Agreement, to HOLDING'S
modifying the 1998 Debt Indenture to evidence the incurrence of such
additional Debt pursuant to the existing terms of the 1998 Debt
Indenture.
SECTION 2. AMENDMENTS TO AGREEMENT.
Subject to satisfaction of the conditions set forth in SECTION
2 of this Amendment and in reliance on the INDEMNITORS' warranties set forth in
SECTION 3 below, the Agreement is hereby amended as follows:
(a) The definition of "Limited Subsidiary" in Section 1.1 of
the Agreement is amended by deleting the proviso at the end thereof in
its entirety and inserting in lieu thereof:
"PROVIDED, that none of NATCO Limited Partnership, North
American TrailingCompany or North
American Site Developers, Inc. shall be deemed to be a LIMITED
SUBSIDIARY for purposes of this Agreement."
(b) Section 3.1 of the Agreement is amended by adding the
language "(other than North American Site Developers, Inc.)"
immediately after the language "Notwithstanding anything to the
contrary herein, any INDEMNITOR which is not a wholly-owned SUBSIDIARY
of HOLDINGS" that appears in such Section.
(c) Section 3.2 of the Agreement is amended by adding the
language "(other than North American Site Developers, Inc.)"
immediately after the language "Notwithstanding anything to the
contrary herein, any INDEMNITOR which is not a wholly-owned SUBSIDIARY
of HOLDINGS" that appears in such Section.
(d) Section 6.12(f)(ii) of the Agreement is amended by
deleting the reference therein to "$115,000,000" and inserting in lieu
thereof "$155,000,000".
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(e) Section 6.12(r) of the Agreement is deleted in its
entirety and the following inserted in lieu thereof:
"(r) DEBT of North American Site Developers, Inc. owing to
management stockholders of North American Site
Developers, Inc., PROVIDED, that the aggregate amount
of such DEBT shall not exceed at any time the lesser
of (i) $3,000,000 and (ii) the aggregate principal
amount scheduled to be outstanding at such time in
accordance with the terms of those certain promissory
notes dated April 24, 2001 from North American Site
Developers, Inc. to the order of such management
stockholders;"
(f) Section 6.13(b) of the Agreement is amended by (i)
deleting the word "and" that appears immediately prior to subsection
(iii) of such Section and (ii) by adding the following at the end of
such Section:
", and (iv) shares of capital stock or equity interests issued
by North American Site Developers, Inc. to Persons other than
HOLDINGS or a wholly-owned SUBSIDIARY of HOLDINGS, PROVIDED,
that the aggregate amount of such shares of capital stock or
equity interests issued to such Persons shall not exceed
twenty-five percent (25%) of the aggregate number of shares of
capital stock or equity interests issued by North American
Site Developers, Inc.;"
(g) Section 6.15(e) of the Agreement is amended by adding the
following at the end thereof:
", and PROVIDED FURTHER, that HOLDINGS or the appropriate
SUBSIDIARY will provide RELIANCE with prior written notice of
any investment, DEBT or CONTINGENT LIABILITY (other than an
investment, DEBT or CONTINGENT LIABILITY made in the ordinary
course of business consistent with past business practices) to
be made by HOLDINGS or such SUBSIDIARY in NATCO, North
American or any SUBSIDIARY thereof;"
(h) Section 6.18 of the Agreement is amended by adding at the
end thereof the following:
", including, without limitation, the provision of
commercial and industrial demolition services."
SECTION 3. CONDITIONS PRECEDENT.
This Amendment shall be effective upon receipt by RELIANCE of
the documents listed below, each, unless otherwise noted, dated the date hereof,
duly executed, in form and substance satisfactory to RELIANCE and in quantities
designated by RELIANCE:
(a) This Amendment executed by all parties hereto.
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(b) The INDEMNITORS shall have delivered such other documents
as RELIANCE may reasonably request.
SECTION 4. WARRANTIES.
To induce RELIANCE to enter into this Amendment, the
INDEMNITORS warrant to RELIANCE as of the date hereof and after giving effect to
this Amendment that:
(a) The representations and warranties contained in Article V
of the Agreement, in Section 4 of each SECURITY AGREEMENT (A/R), in
Section 4 of each SECURITY AGREEMENT (EQUIPMENT), in Section 4 of the
PLEDGE AGREEMENT and in Article I of each of the VESSEL MORTGAGES, are
correct in all material respects on and as of the date hereof as though
made on and as of such date except to the extent stated to relate to an
earlier date, in which case such representation and warranty shall be
correct as of such earlier date; and
(b) No EVENT OF DEFAULT has occurred and is continuing.
SECTION 5. GENERAL.
(a) Terms used but not otherwise defined herein are used
herein as defined in the Agreement.
(b) As hereby modified, the Agreement shall remain in full
force and effect and is hereby ratified, approved and confirmed in all
respects.
(c) This Amendment shall be binding upon and shall inure to
the benefit of the INDEMNITORS and RELIANCE and respective successors
and assigns of RELIANCE.
(d) This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Amendment.
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IN WITNESS WHEREOF, this Agreement is executed by the parties
on the day and date first set forth above.
GREAT LAKES DREDGE & DOCK CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President and CFO
GREAT LAKES DREDGE & DOCK COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President and CFO
▇▇▇▇▇ DREDGING & CONSTRUCTION COMPANY, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President and CFO
NATCO DREDGING LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President
NORTH AMERICAN TRAILING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President and CFO
FIFTY-THREE DREDGING COMPANY
By:
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Its: Vice President
▇▇▇▇▇▇ DREDGING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President and CFO
IN WITNESS WHEREOF, this Agreement is executed by the parties
on the day and date first set forth above.
GREAT LAKES DREDGE & DOCK CORPORATION
By:
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Its:
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GREAT LAKES DREDGE & DOCK COMPANY
By:
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Its:
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▇▇▇▇▇ DREDGING & CONSTRUCTION COMPANY, LTD.
By:
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Its:
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NATCO DREDGING LIMITED PARTNERSHIP
By:
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Its:
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NORTH AMERICAN TRAILING COMPANY
By:
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Its:
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FIFTY-THREE DREDGING COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Vice President
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▇▇▇▇▇▇ DREDGING COMPANY
By:
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Its:
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GREAT LAKES CARIBBEAN DREDGING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President and CFO
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NORTH AMERICAN SITE DEVELOPERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President
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RELIANCE INSURANCE COMPANY
UNITED PACIFIC INSURANCE COMPANY
RELIANCE NATIONAL INSURANCE COMPANY
RELIANCE SURETY COMPANY
By: /s/
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Its: Attorney-in-Fact
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