FIRST AMENDMENT TO CREDIT AGREEMENT (Deep Down, Inc.)
EXHIBIT
10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is entered into as of December 18, 2008, between DEEP DOWN, INC., a Nevada
corporation (“Borrower”),
and WHITNEY NATIONAL BANK, a national banking association (the “Lender”). Capitalized
terms used but not defined in this Amendment have the meaning given them in the
Credit Agreement (defined below).
RECITALS
A. Borrower
and Lender entered into that certain Credit Agreement dated as of November 11,
2008 (as amended, restated or supplemented the “Credit
Agreement”).
B. Borrower
and Lender have agreed to amend the Credit Agreement, subject to the terms and
conditions of this Amendment.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the undersigned hereby agree as follows:
1.
Amendments to Credit
Agreement.
(a) Section
1.1 of the Credit Agreement is amended to delete the definitions of Term Committed
Amount and Term Maturity
Date in their entirety and replace them with the following:
“Term Committed
Amount means the lesser of (a) $1,150,000, and (b) 75% of the cost of the
new Super Mohawk 21 remote operated vehicle purchased by Borrower using, in
part, the proceeds of the Term Facility.”
“Term Maturity
Date means the
earlier of (a) the
third anniversary of the Term Loan Closing Date, and (b) the acceleration of
maturity of the Term Facility in accordance with Section 12
of this Agreement.”
(b) Section
3.2 of the Credit Agreement is deleted in its entirety and is replaced
with the following:
“3.2 Term
Facility.
(a) Payments
of principal and accrued and unpaid interest on the Loan made under the Term
Facility in the amount of $35,246.35 are due and payable monthly in arrears
beginning on the first day of February 1, 2009, and continuing on the first day
of each month thereafter.
(b) All
outstanding principal and all accrued and unpaid interest in respect of the Term
Facility is due and payable on the Term Maturity Date.”
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(c)
Section
3.5 of the Credit Agreement is deleted in its entirety and is replaced
with the following:
“3.5
Interest. Except
as otherwise provided in this Agreement,
(a) Loans
under the Revolving Credit Facility shall accrue interest at an annual rate
equal to the lesser of (i) (A) for LIBOR Loans, the sum of LIBOR plus the
Applicable Rate, and (B) for Prime Rate Loans, the Prime Rate, and (ii) the
Maximum Rate.
(b) Loans
under the Term Facility shall accrue interest at an annual fixed rate equal to
6.5%.
(c) Each
change in LIBOR, the Prime Rate, or the Maximum Rate is effective has of the
date of such change without notice to Borrower or any other
Person. Generally, LIBOR shall be set for each month on the first day
of such month.”
(d)
Section 7.13(b) of the Credit Agreement is deleted in its entirety and is
replaced with the following:
“(b) Borrower
will use the proceeds of the Term Facility to acquire a new remote operated
vehicle.”
2.
Schedules. Schedule
3.2 to the Credit Agreements is deleted in its entirety.
3.
Term Loan Closing
Date. For the avoidance of doubt, the Borrower and lender
agree and confirm that the Term Loan Closing Date is December 18,
2008.
4.
Fee. On
the Term Loan Closing Date, Borrower shall pay to Lender for its own account an
upfront closing fee in the amount of $5,750 for the Term
Facility. Such fee shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
5.
Waiver. Subject
to the conditions set out in this Amendment, Lender waives Section
5.2(c) as a condition to the funding of the Term Facility. Except as set
out in the preceding sentence, Borrower hereby agrees that such waiver does not
constitute a waiver of any present or future violation of or noncompliance with
any provision of any Loan Document or a waiver of Lender’s right to insist upon
strict compliance with each term, covenant, condition, and provision of the Loan
Documents.
6.
Conditions. This
Amendment shall be effective once each of the following have been delivered to
Lender:
(a) this
Amendment executed by Borrower and Lender;
(b) Guarantor’s
Consent and Agreement;
(c) Officer’s
Certificate and Resolutions authorizing the Term Facility;
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(d) a Term
Note in the Term Loan Committed Amount signed by Borrower;
(e) an
amendment to the Security Agreement which specifically describes the newly
acquired remote operated vehicle; and
(f) such
other documents as Lender may reasonably request.
7.
Representations and
Warranties. Borrower represents and warrants to Lender that
(a) it possesses all requisite power and authority to execute, deliver and
comply with the terms of this Amendment, (b) this Amendment has been duly
authorized and approved by all requisite corporate action on the part of
Borrower, (c) no other consent of any Person (other than Lender) is required for
this Amendment to be effective, (d) the execution and delivery of this Amendment
does not violate its organizational documents, (e) the representations and
warranties in each Loan Document to which it is a party are true and correct in
all material respects on and as of the date of this Amendment as though made on
the date of this Amendment (except to the extent that
such representations and warranties speak to a specific date), (f) it is in full
compliance with all covenants and agreements contained in each Loan Document to
which it is a party, and (g) no Default or Potential Default has occurred and is
continuing. The representations and warranties made in this Amendment
shall survive the execution and delivery of this Amendment. No
investigation by Lender is required for Lender to rely on the representations
and warranties in this Amendment.
8.
Scope of Amendment;
Reaffirmation; Release. All references to the Credit Agreement
shall refer to the Credit Agreement as amended by this
Amendment. Except as affected by this Amendment, the Loan Documents
are unchanged and continue in full force and effect. However, in the
event of any inconsistency between the terms of the Credit Agreement (as amended
by this Amendment) and any other Loan Document, the terms of the Credit
Agreement shall control and such other document shall be deemed to be amended to
conform to the terms of the Credit Agreement. Borrower hereby
reaffirms its obligations under the Loan Documents to which it is a party and
agrees that all Loan Documents to which they are a party remain in full force
and effect and continue to be legal, valid, and binding obligations enforceable
in accordance with their terms (as the same are affected by this
Amendment). Borrower hereby releases Lender from any liability for
actions or omissions in connection with the Credit Agreement and the other Loan
Documents prior to the date of this Amendment.
9.
Miscellaneous.
(a) No Waiver of
Defaults. Except as expressly set out above, this Amendment
does not constitute (i) a waiver of, or a consent to, (A) any provision of the
Credit Agreement or any other Loan Document not expressly referred to in this
Amendment, or (B) any present or future violation of, or default under, any
provision of the Loan Documents, or (ii) a waiver of Lender’s right to insist
upon future compliance with each term, covenant, condition and provision of the
Loan Documents.
(b) Form. Each
agreement, document, instrument or other writing to be furnished Lender under
any provision of this Amendment must be in form and substance satisfactory to
Lender and its counsel.
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(c) Headings. The
headings and captions used in this Amendment are for convenience only and will
not be deemed to limit, amplify or modify the terms of this Amendment, the
Credit Agreement, or the other Loan Documents.
(d) Costs, Expenses and
Attorneys’ Fees. Borrower agrees to pay or reimburse Lender on
demand for all its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, and execution of this Amendment,
including, without limitation, the reasonable fees and disbursements of Lender’s
counsel.
(e) Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of each of the undersigned and their respective successors and permitted
assigns.
(f) Multiple
Counterparts. This Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document. All counterparts must be construed together to constitute
one and the same instrument. This Amendment may be transmitted and
signed by facsimile or portable document format (PDF). The
effectiveness of any such documents and signatures shall, subject to applicable
law, have the same force and effect as manually-signed originals and shall be
binding on Borrower and Lender. Lender may also require that any such
documents and signatures be confirmed by a manually-signed original; provided that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
or PDF document or signature.
(g) Governing
Law. This Amendment and the other Loan Documents must be
construed, and their performance enforced, under Texas law.
(h) Entirety. The Loan
Documents (as amended hereby) Represent the Final Agreement Between Borrower and
Lender and May Not Be Contradicted by Evidence of Prior, Contemporaneous, or
Subsequent Oral Agreements by the Parties. There Are No Unwritten
Oral Agreements among the Parties.
[Signatures
appear on the next page.]
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The
Amendment is executed as of the date set out in the preamble to this
Amendment.
| BORROWER: | |||
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a Nevada corporation
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|
By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Chief Financial Officer | |||
| LENDER: | |||
|
WHITNEY
NATIONAL BANK,
a national banking association
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|||
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By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇ | |
| ▇▇▇▇ ▇. ▇▇▇▇ | |||
| Vice President | |||
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GUARANTOR’S
CONSENT AND AGREEMENT
As an
inducement to Lender to execute, and in consideration of Lender’s execution of,
this Amendment, the undersigned hereby consent to this Amendment and agrees that
this Amendment shall in no way release, diminish, impair, reduce or otherwise
adversely affect the obligations and liabilities of the undersigned under the
Guaranty executed by the undersigned in connection with the Credit Agreement, or
under any Loan Documents, agreements, documents or instruments executed by the
undersigned to create liens, security interests or charges to secure any of the
Obligation (as defined in the Credit Agreement), all of which are in full force
and effect. Each of the undersigned further represents and warrants
to Lender that (a) the representations and warranties in each Loan Document to
which it is a party are true and correct in all material respects on and as of
the date of this Amendment as though made on the date of this Amendment (except
to the extent that such representations and warranties speak to a specific
date), (b) it is in full compliance with all covenants and agreements contained
in each Loan Document to which it is a party, and (c) no Default or Potential
Default has occurred and is continuing. Each Guarantor hereby
releases Lender from any liability for actions or omissions in connection with
the Loan Documents prior to the date of this Amendment. This Consent
and Agreement shall be binding upon the undersigned, and his heirs, legal
representatives, and permitted assigns, and shall inure to the benefit of
Lender, and its successors and assigns.
GUARANTORS
ELECTROWAVE
USA, INC.,
a Nevada
corporation
FLOTATION
TECHNOLOGIES, INC.,
a Maine
corporation
MAKO
TECHNOLOGIES, LLC,
a Nevada
limited liability company
DEEP DOWN
INC.,
a
Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Chief
Financial Officer of each of the foregoing companies
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