EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of June 18, 2003, is made among XXXXXXXX OFFSHORE SERVICES, LLC, a Delaware
limited liability company ("HOS"); XXXXXXXX OFFSHORE TRANSPORTATION, LLC, a
Delaware limited liability company formerly known as LEEVAC Marine, LLC ("HOT";
HOS and HOT are sometimes referred to herein collectively as the "Borrowers" and
individually as a "Borrower"); HIBERNIA NATIONAL BANK, a national banking
association, as agent (in such capacity, together with its successors and
assigns in such capacity, the "Agent"); and the lenders listed on the signature
pages hereof (the "Banks"), which agree as follows:
W I T N E S S E T H:
WHEREAS, Borrowers, Banks and Agent are party to that certain Credit
Agreement dated as of December 31, 2001 (as previously amended by the First
Amendment to Credit Agreement dated February 25, 2002, the "Original Credit
Agreement"; the Original Credit Agreement, as amended hereby, is hereinafter
referred to as the "Credit Agreement") pursuant to which the Banks agreed to
lend money to Borrowers upon and subject to the terms and conditions thereof;
WHEREAS, capitalized terms used herein without definition shall have
the respective meanings given them in the Original Credit Agreement;
WHEREAS, Borrowers, Banks and Agent desire to amend the Original Credit
Agreement as set forth herein, subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrowers, Banks and Agent hereby agree as follows:
1. Subject to Section 4 hereof, the Original Credit Agreement is hereby
amended as follows:
(a) Section 1.02 is hereby amended by deleting the definition
of Borrowing Base set forth therein and substituting therefor the following new
definition of such term:
"Borrowing Base" shall mean Fifty Million
and No/100 ($50,000,000.00) Dollars. Any increase or
decrease in the Borrowing Base is subject to
unanimous written approval of the Banks and, in
addition, compliance, demonstrated to Agent's
satisfaction, by the Guarantor and the Borrowers with
Section 5.17 and 5.18 hereof and applicable
provisions of the Indenture (including without
limitation, to the extent applicable, compliance with
the Consolidated Interest Coverage Ratio test at
Section 4.09 of the Indenture).
(b) Section 1.02 is hereby amended by adding the following new
defined terms as alphabetically appropriate:
"HOS-IV" shall mean HOS-IV, LLC, a Delaware
limited liability company.
"HOS-IV Guaranty" shall mean the Guaranty
Agreement dated as of June 26, 2003 by HOS-IV in
favor of the Agent, for the ratable benefit of the
Banks, as it may from time to time be amended,
modified, supplemented or restated.
"HOS-IV Vessels" shall mean the CANDY TRADER
(O.N. 1059198), the CANDY VOYAGER (O.N. 1065076), the
CANDY EXPRESS (O.N. 1069398), CANDY EXPLORER (O.N.
1076230), and the CANDY PIONEER (O.N. 1091418).
Concurrently with the acquisition thereof by HOS-IV,
such HOS-IV Vessels are to be renamed HOS TRADER, HOS
VOYAGER, HOS EXPRESS, HOS EXPLORER and HOS PIONEER,
respectively.
(c) Article 4 is hereby amended by adding the following new
Section 4.20 after Section 4.19:
Section 4.20 HOS-IV. Guarantor directly owns
all of the equity of HOS-IV, free and clear of any
Lien. In furtherance of the requirements under
Section 3.01 hereof, HOS-IV is a Guarantor
Subsidiary.
(d) Schedule 1 is hereby deleted in its entirety and there is
substituted therefor the Schedule 1 attached hereto.
2. Subject to Section 4 hereof, (i) in furtherance of the requirements
set forth in Section 4 hereof and in accordance with the definition of HOS
Vessels, the parties acknowledge and agree that the HOS STORMRIDGE (O.N.
1124421) and the HOS SANDSTORM (O.N. 1124424) (collectively, the "Additional HOS
Vessels") are HOS Vessels, (ii) all references in the Credit Agreement to
"Collateral Documents" shall include, without limitation, the HOS-IV Guaranty,
and (iii) the Agent and the Required Banks hereby agree that the acquisition of
the HOS-IV Vessels and the CANDY MARINER (O.N. 1083977) (to be renamed by HOS-IV
upon acquisition thereof) and the construction for HOS by LEEVAC Industries, LLC
("Leevac") of the four (4) deepwater offshore supply vessels under HOS's
newbuild program announced in April 2002 (namely, the HOS BLUEWATER, the HOS
GEMSTONE, the HOS GREYSTONE and the HOS SILVERSTAR, formerly or currently
Leevac's hull numbers 333, 334, 335 and 336, respectively) shall not be counted
under subsection 8.01(o) of the Credit Agreement as capital expenditures
thereunder.
3. The Original Credit Agreement shall be deemed amended to the extent
necessary to give effect to the foregoing. Except as amended hereby, the
Original Credit Agreement shall remain in full force and effect.
4. As conditions precedent to the effectiveness of this Amendment, (i)
all representations and warranties set forth in the Credit Agreement shall be
true and correct as of the date hereof and on the date of the effectiveness of
this Amendment determined in accordance with this Section 4 (other than those
representations and warranties that are, by their specific items, limited in
application to a specific date before the date of this Amendment), (ii)
Borrowers shall have paid or caused to be paid all costs and expenses incurred
by Agent and Banks, or otherwise agreed by Borrowers to be paid, through the
date hereof, (iii) Borrowers shall have paid the fees required to be paid
through the date hereof, and (iv) Agent and Banks shall have received the
following on or before July 15, 2003, all of which shall be in form and
substance satisfactory to the Agent and in sufficient counterparts:
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(A) Duly executed counterparts of this Amendment signed by
all parties hereto.
(B) Duly executed counterparts of (1) a supplement to the HOS
Fleet Mortgage and an amendment to the HOS Security
Agreement, each signed by HOS and adding to the coverage
thereof first priority liens in favor of the Agent, for
the ratable benefit of the Banks, on the Additional HOS
Vessels and related assets (and the amendment to the HOS
Security Agreement shall be considered authorization for
recordation of an amendment to the underlying financing
statement to add the Additional HOS Vessels and related
assets), and (2) the HOS-IV Guaranty by HOS-IV, as
required under Section 3.01 of the Credit Agreement.
(C) The duly executed certificate of the Secretary of HOS-IV
setting forth (i) resolutions of its managers in form and
substance satisfactory to the Agent with respect to the
authorization of the Loan Documents to which it is a
party and the transactions contemplated by the Credit
Agreement and such other Loan Documents; (ii) the names
and true signatures of the officers or other persons
authorized to sign such instruments; and (iii) copies of
the certificates of formation (and all prior merger or
conversion, as the case may be, documentation) and the
operating agreement of HOS-IV.
(D) Copies of (i) all charter agreements, if any, relating to
the Additional HOS Vessels, (ii) Certificates of
Documentation for the Additional HOS Vessels, and (iii)
vessel abstracts for the Additional HOS Vessels showing
no recorded Lien thereon.
(E) Evidence that the insurance required to be maintained
under the Loan Documents with respect to the Additional
HOS Vessels has been obtained and is in full force and
effect.
(F) Evidence that the Guarantor has received at least
$20,000,000 (including without limitation up to
$6,000,000 from the Person selling the HOS-IV Vessels to
HOS-IV) for additional equity from the issuance of
Guarantor's common stock or signed and binding
subscription agreements to purchase such equity, in each
case from qualified investors, as contemplated by the
Guarantor's Confidential Private Offering Memorandum
dated May 30, 2003.
(G) Current surveys of the Additional HOS Vessels from the
Surveyor to the Agent showing an orderly liquidation
value of at least $25,000,000.
(H) A Draw Request Certificate from the Borrowers to borrow
up to $40,000,000 for the purpose of lending such loan
proceeds to HOS-IV, which in turn shall be used by HOS-IV
for the acquisition of the HOS-IV Vessels.
(I) Vessel abstracts for the HOS-IV Vessels showing no
recorded Lien thereon other than any Lien that is to be
satisfied contemporaneously with the acquisition thereof
by HOS-IV.
(J) A copy of the supplemental indenture and related
documents referred to in Section 6(c) hereof, duly
executed by all parties thereto.
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5. By its consent to this Amendment, in addition to otherwise accepting
and agreeing to the terms and conditions of this Amendment, Guarantor
specifically reaffirms, confirms and acknowledges Guarantor's indebtedness,
liabilities and obligations to Agent and Banks under and in connection with the
Guaranty.
6. (a) Borrowers represent and warrant to Agent and Banks that no
Default or Event of Default exists under the Credit Agreement.
(b) Borrowers acknowledge and agree in favor of Agent and Banks that
notwithstanding their representation and warranty set forth in the immediately
preceding subsection (a), to the extent that there is any Default or Event of
Default under the Credit Agreement, the execution and delivery (and acceptance)
of this Amendment by Agent and Banks shall not constitute or be deemed to
constitute in any respect a waiver of any such Default or Event of Default.
(c) Borrowers and, by their consent to this Amendment, Guarantor and
HOS-IV acknowledge, agree, confirm, declare, represent and warrant to Agent and
Banks that all of their respective representations and warranties set forth in
the Credit Agreement and the other Loan Documents are true and correct on the
date hereof and on the date of the effectiveness of this Amendment determined in
accordance with Section 4 hereof (other than those representations and
warranties that are, by their specific terms, limited in application to a
specific date before the date of this Amendment); provided, that insofar as this
representation and warranty relates to the date of the execution and delivery of
this Amendment, Guarantor has not yet provided to the Indenture Trustee a
supplemental indenture and related documents that are required under the
Indenture notifying the Indenture Trustee that HOS-IV is a guarantor of the
Indenture Obligations, but Guarantor will have done so by the date of the
effectiveness of this Amendment determined in accordance with Section 4 hereof.
Without limiting the generality of the foregoing, Borrowers, Guarantor and
HOS-IV represent and warrant to Agent and Banks that Borrowers, Guarantor and
HOS-IV have reviewed the Indenture and are satisfied that each Borrower's,
Guarantor's and HOS-IV's execution, delivery and performance of this Amendment
and the other documents provided in connection herewith will not violate any
provision of the Indenture.
7. This Amendment shall be governed by and construed in accordance with
the laws of the State of Louisiana.
8. This Amendment may be executed in one or more counterparts with the
same effect as if the signatures hereto and thereto were upon the same
instrument.
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IN WITNESS WHEREOF, Borrowers, Banks and Agent have executed and
delivered this Amendment on the date first above written.
XXXXXXXX OFFSHORE SERVICES, LLC
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
XXXXXXXX OFFSHORE TRANSPORTATION, LLC
(f/k/a LEEVAC Marine, LLC)
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
HIBERNIA NATIONAL BANK, as Agent
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as a Bank
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
FORTIS CAPITAL CORP.
By: /s/ X. XXXXXX
-------------------------------------
Name: X. Xxxxxx
Title: Managing Director
By: /s/ CHR. XXXXXX XXXXXX
-------------------------------------
Name: Chr. Xxxxxx Xxxxxx
Title: Vice President
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
[Signatures continued on next page.]
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ACCEPTED AND AGREED TO:
XXXXXXXX OFFSHORE SERVICES, INC.
(f/k/a XXXXXXXX-LEEVAC Marine Services, Inc.)
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
HOS-IV, LLC
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
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SCHEDULE 1
COMMITMENTS OF THE BANKS
Borrowing Base
Credit Commitment Credit
Name and Address of Bank of Bank Commitment of Bank
------------------------ ----------------- ------------------
Hibernia National Bank $20,000,000.00 $20,000,000.00
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxxxxx
Fortis Capital Corp. $20,000,000.00 $20,000,000.00
Three Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
Southwest Bank of Texas, N.A. $10,000,000.00 $10,000,000.00
0 Xxxx Xxx Xxxx
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
