NINTH AMENDMENT TO EXIM GUARANTEED LOAN AGREEMENT
Exhibit 10.1
NINTH AMENDMENT TO EXIM GUARANTEED LOAN AGREEMENT
This NINTH AMENDMENT TO EXIM GUARANTEED LOAN AGREEMENT (the "Ninth Amendment"), dated as of the 11th day of February, 2005, is made by and among HORIZON OFFSHORE CONTRACTORS, INC. ("Contractors"), HORIZON SUBSEA SERVICES, INC. ("Subsea"), HORIZON VESSELS, INC. ("Vessels"), and HORIZEN, L.L.C. ("LLC", and together with Contractors, Subsea and Vessels, the "Borrowers"), jointly and severally, each of the financial institutions which is or may from time to time become a party to such Agreement (as defined below) (collectively, "Lenders," and each a "Lender"), and SOUTHWEST BANK OF TEXAS, N.A., as agent (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Borrowers, Lenders and Agent are parties to that certain EXIM Guaranteed Loan Agreement dated as of August 15, 2001 (as the same has been or may hereafter be amended, supplemented or otherwise modified, the "Agreement"); and
WHEREAS, Borrowers, Lenders and Agent now desire to amend the Agreement as herein set forth.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and premises contained herein, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the conditions to effectiveness set forth in Section 6 hereof, the parties hereto agree as follows:
1. Terms. Capitalized terms used in this Ninth Amendment (including the recitals hereof) shall have the meanings assigned to them in the Agreement, as amended by this Ninth Amendment.
2. Amendments to Definitions. The following definition set forth in Section 1.1 of the Agreement is hereby amended and restated in its entirety as follows:
"Termination Date" means 11:00 a.m., Houston, Texas time on February 18, 2005.
3. Cash Sweep and Combined Commitment Reductions. Notwithstanding anything to the contrary in the Loan Documents and without limitation of any terms thereof, until the payment in full of the Obligations, Borrowers shall cause all funds consisting of Borrowing Base Eligible Receivables to be paid directly to the Holding Lockbox or deposited directly into the Holding Account. If for any reason such funds are not paid directly to the Holding Lockbox or deposited directly into the Holding Account, Borrower shall immediately transfer such funds into the Holding Account. Agent shall transfer daily to the Collateral Account all such funds received in the Holding Lockbox or deposited directly into or transferred into the Holding Account. All such funds consisting of Borrowing Base Eligible Receivables shall be applied by Agent to the Obligations. Borrowers shall deliver to Agent daily a report showing the sources of amounts received in the Holding Lockbox and deposited in the Holding Account on the prior day.
4. Cash Collateral Securing Pemex Bond. In no event shall the cash collateral previously securing the Pemex Bond (as defined in the consent letter dated May 25, 2004) be paid to the holders of any Subordinated Debt.
5. Accounts. Borrowers and their respective Subsidiaries shall maintain all of their domestic deposit accounts with Agent (each such account a "Domestic Account"), except for ▇▇▇▇▇ cash accounts in an aggregate amount which does not exceed $300,000 and workmen's compensation accounts required to be maintained at other locations. Borrowers shall only transfer funds from a Domestic Account for purposes of paying Borrowers' operating expenses then due and payable in the ordinary course of Borrowers' business. Borrowers shall give Agent no less than twenty-four hours advance notice of any individual request for withdrawal from a Domestic Account in excess of $1,500,000, including the amount to be withdrawn, the payee thereof and the purpose of such payment. Agent shall have the right to refuse any withdrawal request in the event Agent is not provided prior written notice thereof as required in this Paragraph 5 or Agent determines that such withdrawal is being made for purposes other than paying Borrowers' operating expenses then due and payable in the ordinary course of Borrowers' business.
6. Conditions Precedent. The effectiveness of this Ninth Amendment is subject to the satisfaction of the following:
(a) this Ninth Amendment shall have been duly executed and delivered by each of the parties set forth on the signature pages hereto;
(b) Agent and Lenders shall have received such other documents, instruments, and consents as they may require in connection with this Ninth Amendment;
(c) Borrowers shall have repaid in full all "Obligations" under and as defined in the Domestic Loan Agreement;
(d) Agent shall have received consent of Exim Bank to the matters contemplated by this Ninth Amendment;
(e) all fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, as counsel to Agent, and all other professional fees of Agent's consultants, in each case incurred in connection with the Agreement and this Ninth Amendment, shall have been paid in full; and
(f) Borrowers shall have paid to Agent, for the ratable benefit of the Lenders, the sum of $14,200 representing the amendment fee relating to the Eighth Amendment to Exim Guaranteed Loan Agreement.
7. Release and Covenant Not to ▇▇▇. EACH BORROWER (IN ITS OWN RIGHT AND ON BEHALF OF ITS DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, ATTORNEYS AND AGENTS) AND EACH GUARANTOR (IN ITS OWN RIGHT AND ON BEHALF OF ITS RESPECTIVE ATTORNEYS AND AGENTS) (THE "RELEASING PARTIES") JOINTLY AND SEVERALLY RELEASE, ACQUIT, AND FOREVER DISCHARGE AGENT AND EACH LENDER AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, ATTORNEYS AND AGENTS, (COLLECTIVELY, THE "RELEASED PARTIES"), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, FROM ANY AND ALL ACTS AND OMISSIONS OF THE RELEASED PARTIES, AND FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, COUNTERCLAIMS, DEMANDS, CONTROVERSIES, COSTS, DEBTS, SUMS OF MONEY, ACCOUNTS, RECKONINGS, BONDS, BILLS, DAMAGES, OBLIGATIONS, LIABILITIES, OBJECTIONS, AND EXECUTIONS OF ANY NATURE, TYPE, OR DESCRIPTION WHICH THE RELEASING PARTIES HAVE AGAINST THE RELEASED PARTIES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, GROSS NEGLIGENCE, USURY, FRAUD, DECEIT, MISREPRESENTATION, CONSPIRACY, UNCONSCIONABILITY, DURESS, ECONOMIC DURESS, DEFAMATION, CONTROL, INTERFERENCE WITH CONTRACTUAL AND BUSINESS RELATIONSHIPS, CONFLICTS OF INTEREST, MISUSE OF INSIDER INFORMATION, CONCEALMENT, DISCLOSURE, SECRECY, MISUSE OF COLLATERAL, WRONGFUL RELEASE OF COLLATERAL, FAILURE TO INSPECT, ENVIRONMENTAL DUE DILIGENCE, NEGLIGENT LOAN PROCESSING AND ADMINISTRATION, WRONGFUL SETOFF, VIOLATIONS OF STATUTES AND REGULATIONS OF GOVERNMENTAL ENTITIES, INSTRUMENTALITIES AND AGENCIES (BOTH CIVIL AND CRIMINAL), RACKETEERING ACTIVITIES, SECURITIES AND ANTITRUST LAWS VIOLATIONS, TYING ARRANGEMENTS, DECEPTIVE TRADE PRACTICES, BREACH OR ABUSE OF ANY ALLEGED FIDUCIARY DUTY, BREACH OF ANY ALLEGED SPECIAL RELATIONSHIP, COURSE OF CONDUCT OR DEALING, ALLEGED OBLIGATION OF FAIR DEALING, ALLEGED OBLIGATION OF GOOD FAITH, AND ALLEGED OBLIGATION OF GOOD FAITH AND FAIR DEALING, WHETHER OR NOT IN CONNECTION WITH OR RELATED TO THE AGREEMENT, THE LOAN DOCUMENTS AND THIS NINTH AMENDMENT, AT LAW OR IN EQUITY, IN CONTRACT IN TORT, OR OTHERWISE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED (COLLECTIVELY, THE "RELEASED CLAIMS"). THE RELEASING PARTIES FURTHER JOINTLY AND SEVERALLY AGREE TO LIMIT ANY DAMAGES THEY MAY SEEK IN CONNECTION WITH ANY CLAIM OR CAUSE OF ACTION, IF ANY, TO EXCLUDE ALL PUNITIVE AND EXEMPLARY DAMAGES, DAMAGES ATTRIBUTABLE TO LOST PROFITS OR OPPORTUNITY, AND THE RELEASING PARTIES DO HEREBY JOINTLY AND SEVERALLY WAIVE AND RELEASE ALL SUCH DAMAGES WITH RESPECT TO ANY AND ALL CLAIMS OR CAUSES OF ACTION WHICH MAY ARISE AT ANY TIME AGAINST ANY OF THE RELEASED PARTIES. THE RELEASING PARTIES REPRESENT AND WARRANT THAT NO FACTS EXIST WHICH COULD PRESENTLY SUPPORT THE ASSERTION OF ANY OF THE RELEASED CLAIMS AGAINST THE RELEASED PARTIES. THE RELEASING PARTIES FURTHER COVENANT NOT TO ▇▇▇ THE RELEASED PARTIES ON ACCOUNT OF ANY OF THE RELEASED CLAIMS, AND EXPRESSLY WAIVE ANY AND ALL DEFENSES THEY MAY HAVE IN CONNECTION WITH THEIR DEBTS AND OBLIGATIONS UNDER THE AGREEMENT, THE LOAN DOCUMENTS AND THIS NINTH AMENDMENT. THIS SECTION 7 IS IN ADDITION TO AND SHALL NOT IN ANY WAY LIMIT ANY OTHER RELEASE, COVENANT NOT TO ▇▇▇, OR WAIVER BY THE RELEASING PARTIES IN FAVOR OF THE RELEASED PARTIES. NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT, THIS NINTH AMENDMENT OR ANY OTHER LOAN DOCUMENT, THIS SECTION 7 SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL SURVIVE THE DELIVERY AND PAYMENT ON THE OBLIGATIONS, THE AGREEMENT, THIS NINTH AMENDMENT AND THE OTHER LOAN DOCUMENTS.
8. Reaffirmation of Guarantees. By their execution hereof, each of the Guarantors acknowledges and agrees (a) to the terms of the release and covenant not to ▇▇▇ set forth in the foregoing Section 7, and (b) that all of the terms and provisions of their respective guarantees shall remain in full force and effect and that the amendments and modifications herein contained shall in no manner adversely affect or impair any Guarantor's obligations under such guaranty.
9. Binding Effect. It is further understood and agreed by and among the parties hereto that all terms and conditions of the Agreement, except as herein modified, shall remain in full force and effect. This Ninth Amendment shall constitute a Loan Document under and as defined in the Agreement. ANY FAILURE TO COMPLY WITH THE TERMS OF THIS NINTH AMENDMENT SHALL CONSTITUTE AN IMMEDIATE EVENT OF DEFAULT UNDER THE AGREEMENT.
10. Counterparts. This Ninth Amendment may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment to be duly executed as of the day and year first above written.
| BORROWERS: | ||
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HORIZON OFFSHORE CONTRACTORS, INC.
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President |
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HORIZEN, L.L.C.
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President |
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HORIZON SUBSEA SERVICES, INC.
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President |
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HORIZON VESSELS, INC.
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President |
| AGENT: | ||
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SOUTHWEST BANK OF TEXAS, N.A., as Agent
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇▇▇▇ Vice President |
[Signatures continued on next page]
| LENDERS: | ||
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SOUTHWEST BANK OF TEXAS,
N.A.
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇▇▇▇ Vice President |
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DRESDNER BANK LATEINAMERIKA AG
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By: |
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ |
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▇▇▇ ▇▇▇▇▇▇▇▇ |
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BANK OF SCOTLAND
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇▇ Assistant Vice President |
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HIBERNIA NATIONAL BANK
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇▇ Senior Vice President |
Acknowledged and Agreed to this 11th day of February, 2005.
GUARANTORS:
HORIZON OFFSHORE, INC.
PROGRESSIVE PIPELINE CONTRACTORS, INC.
AFFILIATED MARINE CONTRACTORS, INC.
TEXAS OFFSHORE CONTRACTORS CORP.
FLEET PIPELINE SERVICES, INC.
GULF OFFSHORE CONSTRUCTION, INC.
BAYOU MARINE CONTRACTORS, INC.
HORIZON OFFSHORE, S. DE ▇.▇. DE C.V.
HORIZON OFFSHORE CONTRACTORS, LTD.
HORIZON GROUP L.D.C.
HORIZON OFFSHORE NIGERIA LTD.
TIBURON INGENERIA Y CONSTRUCCION, S. DE ▇.▇. DE C.V.
HORIZON VESSELS INTERNATIONAL LTD.
PT HORIZON INDONESIA
HORIZON OFFSHORE INTERNATIONAL LTD.
HORIZON MARINE CONSTRUCTION LTD.
HORIZON OFFSHORE PTE. LTD.
HORIZON OFFSHORE CONTRACTORS (MAURITIUS) LTD.
HORIZON MARINE CONSTRUCTION (MAURITIUS) LTD.
HORIZON C-BAY COSTA AFUERA, S. DE ▇.▇. DE C.V.
HOC OFFSHORE, S. DE ▇.▇. DE C.V.
PT ▇▇▇▇▇▇▇ PRANAUPAYA
HORIZON MARINE CONTRACTORS (MALAYSIA) SDN BHD
HORIZON OFFSHORE SERVICES, LTD.
MARINE LEASING (LABUAN) PTE LTD.
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President |
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ECH OFFSHORE, S. DE ▇.▇. DE C.V.
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇▇ Secretary |
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By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attorney-In-Fact |