EXHIBIT 10.2
AMENDED AND RESTATED PROMISSORY NOTE
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$8,534,000.00 April 29, 2003
Houston, Texas
FOR VALUE RECEIVED, the undersigned, NEWPARK SHIPBUILDING-XXXXX ISLAND,
INC. (f/k/a Newpark Shipbuilding and Repair, Inc.), a Texas corporation
("Borrower"), hereby unconditionally promises to pay to the order of NEWPARK
SHIPHOLDING TEXAS, L.P., a Texas limited partnership ("Lender"), at Xxxxxx's
office at 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxx 00000, or
at such other place as the holder of this Amended and Restated Promissory Note
(this "Note") may from time to time designate in writing, in lawful money of the
United States of America and in immediately available funds, the principal sum
of EIGHT MILLION, FIVE HUNDRED THIRTY FOUR THOUSAND AND NO/100 DOLLARS
($8,534,000.00), together with interest on the unpaid amount hereof from January
1, 1997 until this Note is paid in full, subject to the further provisions of
this Note, at the rate of five percent (5%) per annum.
1. This Note is the amendment, restatement, renewal and extension of that
certain Promissory Note dated as of August 29, 1996, referred to in and executed
and delivered pursuant to that certain Asset Purchase Agreement dated August 29,
1996 (as the same may be amended, modified, supplemented or restated from time
to time, the "Asset Purchase Agreement") between Borrower and Lender, and is
secured as provided therein.
2. The principal balance of this Note, together with interest accrued
thereon, shall be due and payable in full on September 30, 2005. Notwithstanding
the preceding sentence, if an Event of Default occurs and is continuing at any
time during the term of this Note, the entire amount of unpaid interest and
principal hereunder shall immediately become due and payable. In the event that
the original principal amount is not paid in full on September 30, 2005,
interest shall thereafter accrue at the rate of eight percent (8%) per annum
(unless payments due under this Note are converted to an installment payment
schedule pursuant to Paragraph 6 hereof).
3. Partial prepayments shall be permitted on this Note prior to the Term
Loan Conversion Date, but only if each such partial prepayment pays interest on
a current basis on the amount so prepaid, and prepays at least $3,164,000 in
principal amount. Interest shall cease to accrue on any amount so prepaid which
is allocated to principal.
4. If a payment hereunder becomes due and payable on a day that is not a
Business Day, the payment may be made on the next succeeding Business Day, and
such extension of time shall be included in the computation of the amount of
interest due on such succeeding Business Day. As used herein, "Business Day"
means any day excluding Saturday, Sunday and any day which is a legal holiday
under the laws of the State of Texas.
5. If payments of principal, interest or any other amount due hereunder or
under any of the other Junior Creditor Agreements (as defined in the
Intercreditor Agreement) are not timely made and remain overdue for a period of
ten (10) days, Borrower, without notice or demand by Xxxxxx, promptly shall pay
to Lender an amount equal to five percent (5%) of each delinquent payment.
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6. Notwithstanding Paragraph 2 hereof, if, on or prior to September 30,
2005, the Term Loan Conditions have been satisfied, then Borrower may elect,
effective on the Term Loan Conversion Date, to convert payments due hereunder to
an installment repayment schedule, and the following provisions shall apply
thereafter:
(a) Commencing with the Term Loan Conversion Date, the unpaid principal
balance of this Note shall be the Prepayment Amount on such Term Loan
Conversion Date, and interest thereon shall accrue at the sum of the Prime
Rate plus five percent (5%). The Prepayment Amount on the Term Loan
Conversion Date (calculated as provided in the Prepayment Letter) shall be
payable in sixty (60) consecutive monthly installments, the first
fifty-nine (59) of which shall each be in the amount of 1/180th of the
Prepayment Amount as of the Term Loan Conversion Date and the sixtieth
(60th) of which shall be the entire remaining unpaid portion thereof. The
first installment shall be due on the first day of the month next following
the month in which the Term Loan Conversion Date occurs, and subsequent
installments shall be due on the same day of each month thereafter until
the Prepayment Amount has been paid. Interest calculated on the Prepayment
Amount at the rate specified to apply following the Term Loan Conversion
Date as provided in Paragraph 1 of the Prepayment Letter shall be payable
at the same time as, but in addition to, each installment of the Prepayment
Amount.
(b) Borrower shall make a special prepayment on this Note on March 31
of each year equal to the amount, provided such amount is a positive
number, determined according to the following formula:
Special Payment = (Available Cash x 0.5) - Debt Service
"Available Cash" for a given period shall be the remainder of (i)
Consolidated EBITDA for First Wave and its Subsidiaries for the calendar
year or portion thereof (for example, in the case of the March 31 next
following the Term Loan Conversion Date, the portion thereof attributable
to the period from the Term Loan Conversion Date to the next succeeding
December 31 preceding the March 31 in question), minus (ii) interest
expense of First Wave and its Subsidiaries paid under the Foothill Credit
Agreement for such period, minus (iii) income taxes of First Wave and its
Subsidiaries paid in cash for such period, minus (iv) Capital Expenditures
of First Wave and its Subsidiaries for such period. "Debt Service" for a
given period shall be the aggregate amount of all payments made by Borrower
or First Wave on this Note during such calendar year or portion thereof.
Such special prepayments shall be applied to the remaining installments in
inverse order of maturity.
(c) After the Term Loan Conversion Date and if Borrower elects to pay
this Note in installments, this Note may be prepaid in whole or in part. If
this Note is prepaid in part, any such partial prepayment shall be applied
to the remaining installments in inverse order of maturity.
7. As used in this Note, the following terms have the meanings specified:
"CAPITAL EXPENDITURES" means expenditures by a Person for assets which
will be used in the ordinary course of its business in a year or years
subsequent to
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the year in which the expenditures are made and which are properly
classifiable in the financial statements of such Person as property,
equipment, improvements, fixed assets, or a similar type of capitalized
asset in accordance with GAAP, provided that such term shall include,
whether or not such inclusion is in conformity with GAAP, (A) the
capitalized portion of each capital lease and (B) expenditures for
equipment purchased simultaneously with the trade-in of existing equipment
owned by each Person to the extent of the excess of the purchase price of
the equipment so purchased over the book value of the equipment hereby
traded in.
"CONSOLIDATED EBITDA" of a Person means, with respect to any period,
an amount equal to: (a) the consolidated net income for such period
determined in accordance with GAAP, plus (b) depreciation and amortization
for such period (to the extent deducted in the computation of consolidated
net income), all in accordance with GAAP, plus (c) interest expense for
such period (to the extent deducted in the computation of consolidated net
income), plus (d) charges for federal, state, local and foreign income
taxes, plus (e) goodwill write-off (to the extent deducted in the
computation of consolidated net income), plus (f) any other non-cash
charges (to the extent deducted in the computation of consolidated net
income); provided, however, that any gain or loss attributable to the sale
of assets shall not be included in the calculation of Consolidated EBITDA.
"EVENT OF DEFAULT" means any of the following shall occur and be
continuing: (a) Borrower shall fail to pay any principal, interest or other
amount on the Note, or Borrower shall fail to pay any other amount due
under any of the Transaction Documents, within ten (10) days after the same
becomes due and payable; (b) Borrower shall fail to perform or observe any
term, condition or agreement contained in any of the Transaction Documents
to be performed on its part, and such failure is not cured within Ten (10)
Business Days after such performance or observation became due; or (c) an
"Event of Default" under the Foothill Credit Agreement, so long as Foothill
has given written notice of such Event of Default.
"FIRST WAVE" means First Wave Marine, Inc., a Delaware corporation.
"FIRWAV CREDIT AGREEMENT" means that certain Credit Agreement dated as
of January 24, 2003, between First Wave, Newpark Shipbuilding-Pelican
Island, Inc. and FirWav Finance, LLC, or if assigned by FirWav Finance,
LLC, its assigns, as amended from time to time.
"FOOTHILL CREDIT AGREEMENT" means that certain Second Amended and
Restated Loan and Security Agreement dated as of February 7, 2002, among
First Wave, Borrower, certain other subsidiaries of First Wave that are
parties thereto and Foothill Capital Corporation, or, if assigned by
Foothill Capital Corporation, its assigns, among others, as amended from
time to time.
"GAAP" means those accounting principles applied on a consistent basis
generally accepted from time to time in the certified public accounting
profession
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(including those set forth in the Opinions of the Accounting Principles
Board of the American Institute of Certified Public Accountants or
statements of the Financial Accounting Standards Board which may be
applicable at the time in question); and "applied on a consistent basis"
means that the accounting principles observed in the period covered by any
report required under the terms of this Agreement are compatible in all
material respects with those applied in any preceding period and report.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement
dated as of February 7, 2002, between Foothill Capital Corporation and
Lender, as supplemented by that certain letter agreement between Foothill
Capital Corporation and Lender dated as of April 29, 2003.
"PERSON" means a corporation, an association, a joint venture, an
organization, a business, an individual or a government or political
subdivision thereof or any governmental agency.
"PREPAYMENT AMOUNT" shall have the meaning given such term in the
Prepayment Letter.
PREPAYMENT LETTER" shall mean that certain Xxxxxxx and Restated
Prepayment Letter dated as of April 29, 2003, between Xxxxxxxx and Lender,
as amended from time to time.
"PRIME RATE" means the prime rate of interest quoted in The Wall
Street Journal.
"SECURITY AGREEMENT" means that certain Security Agreement dated as of
August 29, 1996, between Xxxxxxxx, as debtor, and Xxxxxx, as secured party,
as amended from time to time.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity in which more than fifty percent (50%)
of the total voting power or shares of stock entitled to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof.
"TERM LOAN CONDITIONS" means on or before September 30, 2005, (i)
Borrower has paid its obligations with respect to the Term Loan (as such
term is defined in the Foothill Credit Agreement) under the Foothill Credit
Agreement and all of its Credit Obligations (as such term is defined in the
FirWav Credit Agreement) under the FirWav Credit Agreement and (ii) the
Intercreditor Agreement remains in effect, as supplemented by the letter
agreement dated as of April 29, 2003.
"TERM LOAN CONVERSION DATE" means the first day of the second month
following the month in which the last to be satisfied of the Term Loan
Conditions
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was satisfied, provided the Term Loan Conversion Date may not be later than
September 30, 2005.
"TRANSACTION DOCUMENTS" means this Note, the Prepayment Letter, the
Security Agreement, the Asset Purchase Agreement, any Senior Creditor
Agreements (as defined in the Intercreditor Agreement), and all other
instruments, documents and agreements executed by Borrower or any affiliate
of Borrower in connection with the transactions contemplated by any of the
foregoing documents, as any of the foregoing documents have previously been
or hereafter may be amended, supplemented or otherwise modified from time
to time.
8. In no contingency or event whatsoever shall interest charged hereunder,
however such interest may be characterized or computed, exceed the highest
amount permissible under any law which a court of competent jurisdiction
determines is applicable hereto. In furtherance of the foregoing, if this Note
is paid prior to any of its alternative maturity dates because of the
acceleration of maturity by Xxxxxx, in no event shall the amount contracted to
be paid, charged, or paid hereunder exceed the sum of $6,328,000 plus interest
thereon at the rate of eighteen percent (18%) per annum from August 29, 1996
until the date of payment.
9. If any suit or action is instituted or attorneys are employed to collect
this Note or any part thereof, Xxxxxxxx hereby promises and agrees to pay all
costs of collection, including attorneys' fees and court costs.
10. Borrower and each endorser, guarantor and surety of this Note hereby
waives presentment for payment, protest and demand, and notice of demand,
protest, dishonor and nonpayment of this Note. Xxxxxxxx also waives all rights
to notice and hearing of any kind. Upon the occurrence of an Event of Default
and prior to the exercise by Lender of its rights to repossess all assets
securing this Note without judicial process or to replevy, attach or levy upon
the assets without notice or hearing.
11. THIS NOTE HAS BEEN DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE
AT HOUSTON, TEXAS AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF TEXAS WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS.
Whenever possible each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Note. Whenever in this Note reference is made to Lender or Borrower,
such reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Note shall be binding
upon and shall inure to the benefit of such successors and assigns. Xxxxxxxx's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for Borrower.
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IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the day and year
first written above.
NEWPARK SHIPBUILDING-XXXXX ISLAND, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Authorized Signatory
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