EXHIBIT 10.47
WAIVER AND FIFTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Waiver and Fifth Amendment to Amended and Restated Loan Agreement
is entered into effective April 12, 2004, and is executed in connection with
that certain Amended and Restated Loan Agreement effective as of December 20,
2002 (as the same has been and may be further amended, restated, modified or
supplemented from time to time, the "Loan Agreement") among Torch Offshore, Inc.
("Borrower") and Regions Bank ("Bank").
WHEREAS, Borrower and Bank desire to further amend the Loan Agreement.
NOW THEREFORE, for good and adequate consideration the receipt of which
is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Unless otherwise defined or indicated herein, capitalized terms used
herein shall have the meanings attributed to them in the Loan Agreement. As used
herein, "Credit Agreement" shall mean that certain Credit Agreement by and among
Torch Offshore, Inc., Regions Bank, as Agent, and Regions Bank and Export
Development Canada, as Lenders, dated April 23, 2003, as it has been and may
further be amended, restated, supplemented or replaced from time to time.
2. (a) The Acquisition Line of Credit is hereby terminated, (b) Bank
shall not have any obligation to make any Acquisition Line of Credit Loan or to
issue any Acquisition Line of Credit Letter of Credit, and (c) Bank shall not be
obligated to extend credit to Borrower or to issue any letter of credit for the
account of Borrower or any Subsidiary under the Loan Agreement, except as may be
expressly set forth in Sections 2.01(a) and 4.01(a) of the Loan Agreement.
3. The definitions of "Consolidated Current Ratio", "Consolidated Net
Income" and "Permitted Liens" in Section 1.01 of the Loan Agreement are hereby
amended and restated to read as follows:
"Consolidated Current Ratio" shall mean:
(a) For each fiscal quarter ending on or prior to March
31, 2005, as of any date for which it is being
determined, the ratio of (i) current assets of
Borrower and its Subsidiaries as of such date, as
determined on a consolidated basis in accordance with
GAAP, to (ii) current liabilities of Borrower and its
Subsidiaries as of such date, as determined on a
consolidated basis in accordance with GAAP but
excluding from current liabilities the current
portion of long term debt; provided that, for
purposes of determining the Consolidated Current
Ratio, (A) during the Line of Credit Period (as
defined in the Credit Agreement), the principal
amount of the Receivables Line of Credit Loans
outstanding on such date shall be classified as a
long term liability, (B) any portion of the deposit
described in subparagraph (f) of the definition of
"Permitted Liens" outstanding on such date will be
classified as a current asset, (C) the tax allowance
of $1,329,563.00 plus or minus the additional
deferred tax asset generated or utilized based upon
2004 operating results will be classified as a
current asset to the extent that such allowance
remains on the books of Borrower and its Subsidiaries
as of such date, and (D) until December 31, 2004, the
receivable due from Newfield Exploration Company of
$1,347,904.00 on the books of Borrower and its
Subsidiaries as of December 31, 2003, will be
classified as a current asset to the extent that, as
of such date (of determination), such receivable
remains on the books of Borrower and its Subsidiaries
and Borrower and its Subsidiaries have a reasonable
chance of collecting same; and
(b) For each fiscal quarter ending after March 31, 2005,
as of any date for which its is being determined, the
ratio of (a) current assets of Borrower and its
Subsidiaries as of such date, as determined on a
consolidated basis in accordance with GAAP, to (b)
current liabilities of Borrower and its Subsidiaries
as of such date as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" shall mean:
(a) For each fiscal quarter ending on or prior to
September 30, 2004, for the period in question, the
after-tax net income or loss of Borrower and its
Subsidiaries during such period, but excluding in any
event the following to the extent included in the
computation of net income: (i) any gains or losses
resulting from any reappraisal, revaluation or
write-up or write-down of assets including the tax
allowance of $1,329,593.00 incurred in the fiscal
quarter ending December 31, 2003; (ii) any equity of
Borrower or any Subsidiary in the undistributed
earnings of any corporation which is not a Subsidiary
and is accounted for on the equity method; (iii)
gains or losses from the acquisition or disposition
of Investments; (iv) gains from the retirement or
extinguishment of any Indebtedness except the
$884,517.00 gain on the extinguishment of debt
incurred in the fiscal quarter ending December 31,
2003; (v) gains on collections from insurance
policies or settlements (net of premiums paid or
other expenses incurred with respect to such gains
during the fiscal period in which the gain occurs, to
the extent such premiums or other expenses are not
already reflected in Consolidated Net Income for such
period); (vi) any gains or losses during such period
from any change in accounting principles, from any
discontinued operations, or the disposition thereof
or from any prior period adjustments, including any
losses from the costs incurred for the establishment,
operation and disposition of the Torch Offshore de
Mexico incurred during the fiscal year 2003 to be
treated in its entirety as a cost incurred in the
fiscal quarter ending December 31, 2003; (vii) any
extraordinary gains or losses; and (viii) any losses
resulting from the following described allowance,
expenses or write offs: (A) allowance (or reserve)
made in the fiscal quarter ending on December 31,
2003, in the aggregate amount of $1,365,802.00
against receivable(s) due from Xxxxx Offshore, Inc.;
(B) write off of receivable(s) due from Newfield
Exploration Company in the aggregate amount of
$1,347,904.00 made in the fiscal quarter ending on
December 31, 2003; (C) write off of receivable(s) due
from BP America in the aggregate amount of amount of
$247,868.00 made in the fiscal quarter ending on
December 31, 2003; (D) write off of receivable(s) due
from Tarpon Operating and Development in the amount
of $325,000.00 to be treated as made in the fiscal
quarter ending on December 31, 2003; and (E) the
legal costs and operating costs incurred on the
vessel MIDNIGHT HUNTER aggregating $3,070,967.00 to
be treated as incurred in the fiscal quarter ending
on December 31, 2003; and
(b) For each fiscal quarter ending after September 30,
2004, for the period in question, the after-tax net
income or loss of Borrower and its Subsidiaries
during such period, but excluding in any event the
following to the extent included in the computation
of net income: (i) any gains or losses resulting from
any reappraisal, revaluation or write-up or
write-down of assets; (ii) any equity of Borrower or
any Subsidiary in the undistributed earnings of any
corporation which is not a Subsidiary and is
accounted for on the equity method; (iii) gains or
losses from the acquisition or disposition of
Investments; (iv) gains from the retirement or
extinguishment of any Indebtedness; (v) gains on
collections from insurance policies or settlements
(net of premiums paid or other expenses incurred with
respect to such gains during the fiscal period in
which the gain occurs, to the extent such premiums or
other expenses are not already reflected in
Consolidated Net Income for such period); (vi) any
gains or losses during such period from any change in
accounting principles, from any discontinued
operations or the disposition thereof or from any
prior period adjustments; and (vii) any extraordinary
gains or losses; all determined on a consolidated
basis in accordance with GAAP.
"Permitted Liens" shall mean any of the following: (a) Liens
for property taxes and assessments or governmental charges or levies,
provided that payment thereof is not at the time required by Section
5.02(d); (b) (i) deposits to secure the performance of bids, tenders,
trade contracts or leases (other than capitalized leases) or to secure
statutory obligations, surety or appeal bonds or other Liens of like
general nature incurred in the ordinary course of business and not in
connection with the borrowing of money or the acquisition of inventory
or other Property and (ii) Liens (other than any Liens imposed by ERISA
(as defined in the Credit Agreement))
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arising in the ordinary course of business or incidental to the
ownership of Properties and assets (including Liens in connection with
worker's compensation, unemployment insurance and other like laws,
carrier's, mechanic's, materialmen's, repairmen's, vendor's,
warehousemen's and attorneys' liens and statutory landlords' liens);
provided in each case that payment thereof is not at the time required
by Section 5.02(d) or 5.02(e); (c) Survey exceptions, issues with
regard to the merchantability of title, easements or reservations, or
rights of others for rights-of-way, servitudes, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which could not reasonably be expected to have a Material
Adverse Effect; (d) Liens on Properties in respect of judgments or
awards, the Indebtedness with respect to which is permitted by Section
5.03(n)(v); (e) Liens on the vessel MIDNIGHT WRANGLER (and any
equipment located thereon) securing Indebtedness permitted by Section
5.03(n)(xi); (f) Liens on the vessel MIDNIGHT EAGLE (and any equipment
located thereon) and on a $1,250,000.00 deposit securing Indebtedness
permitted by Section 5.03(n)(xii); (g) leases of or purchase money
security interests against specific equipment securing Indebtedness
permitted by Section 5.03(n)(xiii); (h) Liens on the MIDNIGHT GATOR
(and any equipment located thereon) or the MIDNIGHT RUNNER (and any
equipment located thereon) securing Indebtedness permitted by Section
5.03(n)(xiii); and (i) Liens created under the Loan Documents or the
Transaction Documents (as defined in the Credit Agreement).
4. Section 3.08 of the Loan Agreement is amended and restated to read
as follows:
3.08 ORIGINATION FEE. Borrower shall pay to Bank an
origination fee (the "Origination Fee") on the date hereof and on each
anniversary date of this Agreement equal to: (i) the rate per annum set
forth in the column labeled "Origination Fee" in the definition of
"Applicable Margin" that corresponds to Borrower's Consolidated
Leverage Ratio as of the end of the immediately preceding fiscal
quarter multiplied by (ii) $15,000,000.00. Any commitment fee collected
by Bank in connection the previously existing $10,000,000.00 credit
facility evidenced by letter agreement dated July 1, 2002, will be
credited against the initial Origination Fee.
5. Bank hereby waives compliance by Borrower with the minimum
Consolidated Current Ratio covenant contained in Section 5.02(k)(i) of the Loan
Agreement for the fiscal quarter ending on December 31, 2003. Borrower
acknowledges and agrees that this waiver of compliance with the financial
covenant contained in Section 5.02(k)(i) of the Loan Agreement shall apply only
to the fiscal quarter ending on December 31, 2003 and shall not constitute a
waiver of compliance for any other fiscal quarter.
6. Bank hereby waives compliance by Borrower with the minimum
Consolidated Debt Service Coverage Ratio covenant contained in Section
5.02(k)(ii) of the Loan Agreement for the fiscal quarter ending on December 31,
2003. Borrower acknowledges and agrees that this waiver of compliance with the
financial covenant contained in Section 5.02(k)(ii) of the Loan Agreement shall
apply only to the fiscal quarter ending on December 31, 2003 and shall not
constitute a waiver of compliance for any other fiscal quarter.
7. Section 5.02(k)(i) of the Loan Agreement is amended and restated to
read as follows:
(i) Borrower will have and maintain, as of the end of each
fiscal quarter, a Consolidated Current Ratio of at least:
Periods Ending Ratio
-------------- -----
On or before March 31, 2005 .70
After March 31, 2005 1.00.
8. The Loan Agreement is hereby amended to add the following as Section
5.03(n) thereof:
(n) LIMITATION ON INDEBTEDNESS. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, incur or be obligated on
any Indebtedness other than: (i) the Secured Obligations; (ii)
Indebtedness relating to employee benefit plans; (iii) Indebtedness
described in clause (a) or (b) of the defined term Restricted
Investment; (iv) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and
supplies to the extent that payment therefor shall not at the time be
required to be made in
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accordance with the provisions of Section 5.02(d) or Section 5.02(e);
(v) Indebtedness in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal and for
which adequate provision as determined in accordance with GAAP has been
made so long as execution is not levied thereunder and in respect of
which Borrower or any Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and a suspensive appeal
bond in the full amount of such judgment or award shall have been
obtained by Borrower or such Subsidiary with respect thereto; (vi)
current liabilities of Borrower or any Subsidiary incurred in the
ordinary course of business not incurred through (A) the borrowing of
money, or (B) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection
with normal purchases of goods and services; (vii) endorsements for
collection, deposits or negotiation and warranties of products or
services, in each case incurred in the ordinary course of business;
(viii) Indebtedness in respect of performance, surety or appeal bonds
obtained in the ordinary course of Borrower's or any Subsidiary's
business; (ix) Indebtedness for any permitted declared and unpaid
distributions on Borrower's stock; (x) indebtedness under any Interest
Rate Protection Agreements (as defined in the Credit Agreement)
consented to by Bank; (xi) Indebtedness relating to the MIDNIGHT
WRANGLER in a principal amount not exceeding $15,000,000.00 in the
aggregate at any one time outstanding; (xii) Indebtedness relating to
the MIDNIGHT EAGLE in a principal amount not exceeding $12,000,000.00
in the aggregate at any one time outstanding; (xiii) other Indebtedness
in a principal amount not to exceed $8,00,000.00 in the aggregate at
any one time outstanding; (xiv) Indebtedness under the Credit
Agreement; (xv) the guaranty by Borrower of the obligations of Torch
Express, L.L.C. under any Conversion Contract (as defined in the Credit
Agreement);(xvi) guarantees by Borrower of the performance of contracts
by Subsidiaries entered into in the ordinary course of business and
(xvii) any Subordinate Indebtedness (as defined in the Credit
Agreement).
9. In connection with the foregoing and only in connection with the
foregoing, the Loan Agreement is hereby amended, but in all other respects all
of the terms, conditions and provisions of the Loan Agreement remain unaffected.
All security agreements, financing statements, mortgages, pledges, continuing
guaranties and other security documents in favor of Bank shall remain in full
force and effect.
10. Except as may be specifically set forth herein, this Waiver and
Fifth Amendment to Amended and Restated Loan Agreement shall not constitute a
waiver of any Default(s) under the Loan Agreement or any documents executed in
connection therewith, all rights and remedies of Bank being preserved and
maintained.
11. This Waiver and Fifth Amendment to Amended and Restated Loan
Agreement may be executed in two or more counterparts, and it shall not be
necessary that the signatures of all parties hereto be contained on any one
counterpart hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
TORCH OFFSHORE, INC.
By:
---------------------------------
Xxxxxx X. Xxxxxx
Its: Chief Financial Officer
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxx 00000
Telecopier: (000) 000-0000
REGIONS BANK
By:
---------------------------------
Xxxxx X. Xxxxx
Its: Senior Vice President
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
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