LOAN AGREEMENT
Exhibit 10.1
THIS LOAN AGREEMENT, dated as of July 10, 2007 (this “Agreement”), is between ORION MARINE
GROUP, INC., a Delaware corporation (“Borrower”), each of the financial institutions which is or
may from time to time become a party hereto (collectively, “Lenders”, and each a “Lender”), and
AMEGY BANK NATIONAL ASSOCIATION, a national banking association, as agent (the “Agent”).
R E C I T A L S :
Orion Marine Group Holdings, Inc., a Nevada corporation (“Prior Borrower”), certain Lenders
and the Agent entered into that certain Loan Agreement dated as of October 14, 2004, as amended by
First Amendment to Loan Agreement dated as of December 3, 2004, Second Amendment to Loan Agreement
dated as of November 17, 2005 and Third Amendment to Loan Agreement dated as of March 23, 2007
(collectively, the “Prior Loan Agreement”). On April 5, 2007, (a) Prior Borrower merged with and
into Hunter Acquisition Corp., a Delaware corporation (“Parent”), and (b) Parent changed its name
from Hunter Acquisition Corp. to the name of Borrower, and Borrower assumed all the liabilities of
Prior Borrower. This Agreement is in restatement and replacement of the Prior Loan Agreement, and
the liens and security interests created by the Loan Documents (as defined below) are in renewal
and extension of the liens and security interests created by the documents executed in connection
with the Prior Loan Agreement.
Borrower has requested that Lenders extend credit to Borrower. Lenders are willing to make
such extensions of credit to Borrower upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE I.
Definitions
Section 1.1. Definitions. As used in this Agreement, the following terms have the following
meanings:
“Acquisition” shall have the meaning given to such term in Section 10.3.
“Acquisition Advance” means an advance of funds pursuant to Article IV.
“Acquisition Advance Request Form” means a certificate, in substantially the form of Exhibit
“P”, properly completed and signed by Borrower requesting an Acquisition Advance
“Acquisition Term Loan” means the term loan made by Lenders to Borrower pursuant to Article
IV.
“Acquisition Term Notes” means the promissory notes executed by Borrower payable to the order
of each Lender who has a Commitment-Acquisition Term Loan, respectively, in substantially the form
of Exhibit “C”, properly completed, as the same may be renewed, extended or modified and all
promissory notes executed in renewal, extension, modification or substitution thereof.
“Adjusted Cash Balance” means, at any time (a) all cash of Borrower and its Subsidiaries as of
such time, but excluding cash which is subject to a Lien (including Liens created in connection
with Cash Secured Letters of Credit), minus (b) $3,000,000.00.
“Adjusted Net Income” means, for any period, (a) Net Income for such period minus (b) the sum
of (i) amounts by which Net Income is reduced as a result of extraordinary or non-recurring charges
for such period plus (ii) Income Tax Expense for such period.
“Affiliate” means, with respect to any Person, any other Person which, directly or indirectly,
controls or is controlled by or is under common control with such Person, including, (a) any Person
which beneficially owns or holds ten percent (10%) or more of any class of voting stock of such
Person or ten percent (10%) or more of the equity interest in such Person, (b) any Person of which
such Person beneficially owns or holds ten percent (10%) or more of any class of voting shares or
in which such Person beneficially owns or holds ten percent (10%) or more of the equity interests
in such Person, and (c) any officer or director of such Person.
“Amegy Bank” means Amegy Bank National Association, and its successors and assigns.
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“Applicable Margin” means, for the loan facilities and the Levels described below, the
percentage amounts set forth below.
| Xxxxx X | Xxxxx XX | Xxxxx XXX | Xxxxx XX | Xxxxx X | ||||||
| XXXXX Margin | 1.50% | 1.75% | 2.00% | 2.25% | 2.50% | |||||
| Prime Rate Margin | -1.00% | -0.75% | -0.50% | -0.25% | 0.00% |
Level I applies when the Total Leverage Ratio is less than 1.00 to 1.00.
Level II applies when the Total Leverage Ratio is equal to or greater than 1.00 to
1.00 but less than 1.50 to 1.00.
Level III applies when the Total Leverage Ratio is equal to or greater than 1.50 to
1.00 but less than 2.00 to 1.00.
Level IV applies when the Total Leverage Ratio is equal to or greater than 2.00 to
1.00 but less than 2.50 to 1.00.
Level V applies when the Total Leverage Ratio is equal to or greater than 2.50 to
1.00.
The applicable Level shall be adjusted, to the extent applicable, forty-five (45) days after
the end of each quarter (or, in the case of any change reflected by the audited financial
statements delivered pursuant to Section 9.1(a), on the first Business Day occurring at least one
hundred twenty (120) days after the end of any fiscal year) based on the Total Leverage Ratio
tested for the period ending on the last day of such fiscal quarter or fiscal year, as applicable;
provided that if the Borrower fails to deliver the financial statements required by Section 9.1(a)
or (b), as applicable, and the related No Default Certificate required by Section 9.1(c) by the
forty-fifth (45 th ) (or, if applicable, the one hundred twentieth (120 th ) after
the end of any fiscal quarter or any fiscal year), Level V shall apply until the first Business Day
immediately following the date such financial statements are delivered.
“Applicable Rate” means, (a) during the period that a Loan is a Prime Rate Loan, the Prime
Rate plus the Prime Rate Margin from time to time in effect, and (b) during the period that a Loan
is a LIBOR Loan, the sum of the LIBOR Rate plus the LIBOR Margin from time to time in effect.
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“Assignment and Acceptance” means a document in substantially the form of Exhibit “S”.
“Authorized Representative” means any officer or employee of Borrower who has been designated
in writing by Borrower to Agent to be an Authorized Representative.
“Autopay Agreement” means that certain Amegy Autopay Agreement between Borrower and Agent, and
all modifications, amendments and supplements thereto and all restatements and replacements
thereof.
“Beneficial Owner” has the meaning specified for such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act.
“Board” means the board of directors of Borrower.
“Bond Obligations” means obligations and indebtedness of Borrower and its Subsidiaries arising
in connection with (a) bid or payment and performance bonds or (b) insurance policies or other
instruments insuring the performance by Borrower and its Subsidiaries of obligations under
contracts to which such Persons are parties.
“Bonded Receivables” means accounts receivable of Borrower and its Subsidiaries which arise
from contracts in connection with which Borrower or such Subsidiary has obtained a bond or
insurance policy insuring performance of such contract.
“Bonding Default” means that (a) either (i) Borrower or any of its Subsidiaries shall fail to
have adequate bonding capacity to operate their respective businesses in the ordinary course of
business as reasonably determined by Agent in good faith or (ii) Borrower or any of its
Subsidiaries shall have received notice that its bonding capacity is to be or has been denied,
terminated or withdrawn and (b) such failure or receipt does not yet constitute an Event of Default
under Section 12.1(k) because (A) it has not been cured and (B) the thirty (30) day grace period
provided therein has not been completed.
“Borrowing Base” means, at any particular time, an amount equal to the sum of (a) eighty
percent (80%) of Eligible Accounts plus (b) ninety percent (90%) of Adjusted Cash Balances.
“Borrowing Base Certificate” means a certificate in the form of Exhibit “Q”, fully completed
and executed by all the Borrowing Base Parties.
“Borrowing Base Parties” means Construction, King Xxxxxx and Xxxxxxx.
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“Business Day” means (a) any day on which commercial banks are not authorized or required to
close in Houston, Texas and (b) with respect to all borrowings, payments, Conversions,
Continuations, Interest Periods and notices in connection with LIBOR Loans, any day which is a
Business Day described in clause (a) above and which is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
“Capital Expenditures” means for Borrower and its Subsidiaries, all expenditures for assets
which, in accordance with GAAP, are required to be capitalized and so shown on the consolidated
balance sheet of Borrower and its Subsidiaries.
“Capital Lease Obligations” means, for Borrower and its Subsidiaries, on a consolidated basis,
the obligations of Borrower and its Subsidiaries to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property, which obligations, in
accordance with GAAP, are required to be classified and accounted for as a capital lease on a
balance sheet of any such Person.
“Cash Secured Letter of Credit” means any letter of credit, the indebtedness with respect to
which is fully secured by cash or cash equivalents.
“Cash Taxes” means for Borrower and its Subsidiaries, on a consolidated basis, for any period,
the sum of all income and franchise taxes paid in cash during such period.
“Change of Control” means the occurrence of any of the following:
(a) any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) acquires beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of stock in Borrower that, together with stock
held by such individual, entity or group, constitutes more than fifty percent (50%) of the
total voting power of the stock of Borrower; provided, however, if any individual, entity
or group, is considered to own more than fifty percent (50%) of the total voting power of
the stock of Borrower, the acquisition of additional stock by the same individual, entity
or group will not be considered a “Change in Control”; provided, further, however, that for
purposes of this definition, the following acquisitions shall not constitute a Change in
Control: (i) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Borrower or any entity controlled by Borrower, (ii) any acquisition by
investors in Borrower for financing purposes, or (iii) any holding, grant or exercise of
equity based compensation awards or otherwise pursuant to any employee benefit plan; or
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(b) the replacement of a majority of the members of the Board during any twelve-month
period by directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election.
“Claims” has the meaning set forth in Section 14.2.
“Closing Date” means the date on which this Agreement has been executed and delivered by the
parties hereto and the conditions set forth in Section 7.1 have been satisfied.
“Collateral” has the meaning specified in Section 6.1.
“Combined Commitments-Acquisition Term Loan” means, as to all Lenders who have
Commitments-Acquisition Term Loan, the obligations of such Lenders to make Acquisition Advances in
an aggregate principal amount at any time outstanding up to but not exceeding $25,000,000.00.
“Combined Commitments-Acquisition Term Loan Increase” shall have the meaning given to such
term in Section 4.8.
“Combined Commitments-Real Estate Term Loan” means, as to all Lenders who have
Commitments-Real Estate Term Loan, the obligations of such Lenders to fund the Real Estate Term
Loan in an original aggregate principal amount equal to $3,095,000.00.
“Combined Commitments-Revolving Advances” means, as to all Lenders who have
Commitments-Revolving Advances, the obligations of such Lenders to make Revolving Advances and
issue Letters of Credit in an aggregate principal amount at any time outstanding up to but not
exceeding $8,500,000.00.
“Combined Commitments-Total” means, as to all Lenders, the sum of (a) the Combined
Commitments-Acquisition Term Loan, plus (b) the Combined Commitments-Revolving Advances, plus (c)
the Combined Commitments-Real Estate Term Loan.
“Commitment-Acquisition Term Loan” means, as to any Lender, its obligation to make Acquisition
Advances in the amount set forth opposite the name of such Lender on Annex “II” hereto under the
heading “Commitment-Acquisition Advances”, as the same may be modified (a) as provided in an
amendment to this Agreement or (b) as the result of an assignment of all or part of such Lender’s
Acquisition Term Note pursuant to Section 14.16.
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“Commitment Percentage-Revolving Advances” means for each Lender who has a
Commitment-Revolving Advances the percentage derived by dividing its Commitment-Revolving Advances
by the Combined Commitments-Revolving Advances at the time in question.
“Commitment Percentage-Total” means for each Lender the percentage derived by dividing its
Commitment-Total by the Combined Commitments-Total at the time in question.
“Commitment-Real Estate Term Loan” means, as to any Lender, its obligation to fund the Real
Estate Term Loan in the amount set forth opposite the name of such Lender on the original signature
pages of the Loan Agreement under the heading “Real Estate Term Note”, as the same may be modified
(a) as provided in an amendment to this Agreement or (b) as the result of an assignment of all or
part of such Lender’s Real Estate Term Note pursuant to Section 14.16.
“Commitment-Revolving Advances” means, as to any Lender, its obligation to make Revolving
Advances and issue Letters of Credit hereunder in the amount set forth opposite the name of such
Lender on Annex “I” hereto under the heading “Commitment-Revolving Advances”, as the same may be
(a) reduced pursuant to Section 2.8 or otherwise, (b) modified as provided in an amendment to this
Agreement or (c) modified as the result of an assignment of all or part of such Lender’s Revolving
Credit Note pursuant to Section 14.16.
“Commitment-Total” means, as to any Lender, the sum of (a) its Commitment-Acquisition Term
Loan, plus (b) its Commitment-Revolving Advances, plus (c) its Commitment-Real Estate Term Loan.
“Construction” means Orion Construction, L.P., a Texas limited partnership, and its successors
and assigns.
“Continue”, “Continuation” and “Continued” shall refer to the continuation pursuant to Section
5.7 of a Loan as a Loan of the same Type from one Interest Period to the next Interest Period.
“Convert”, “Conversion”, and “Converted” shall refer to a conversion pursuant to Section 5.7
of or 5.8 of one Type of Loan into another Type of Loan.
“Debt” means for any Person (without duplication) (a) all indebtedness, whether or not
represented by bonds, debentures, notes, securities, or other evidences of indebtedness, for the
repayment of money borrowed, (b) Rate Management Transaction Obligations, (c) all indebtedness
representing deferred payment of the purchase price of property or assets, (d) Capital Lease
Obligations and obligations with respect to
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synthetic leases, (e) all indebtedness under guaranties, endorsements, assumptions, or other
contingent obligations, in respect of, or to purchase or otherwise acquire, indebtedness of others,
(f) all indebtedness secured by a Lien existing on property owned, subject to such Lien, whether or
not the indebtedness secured thereby shall have been assumed by the owner thereof (in which event
the amount thereof shall not be deemed to exceed the fair value of such property), and (g) any
obligation to redeem or repurchase any of such Person’s capital stock or other ownership interests,
but excluding in any event, all obligations and indebtedness related to Cash Secured Letters of
Credit.
“Deed of Trust-Market Street-First Lien” means the Deed of Trust, Security Agreement,
Assignment of Rents and Financing Statement executed by Construction in favor of Agent, dated as of
October 14, 2004, and recorded in the Official Public Records of Real Property of Xxxxxx County,
Texas under Clerk’s File No. Y059593, Film Code No. 000-00-0000, a copy of which is attached as
Exhibit “I”, as modified by Modification to Deed of Trust-Market Street-First Lien, and as the same
may be further amended, supplemented or modified from time to time.
“Deed of Trust-Market Street-Second Lien” means the Deed of Trust, Security Agreement,
Assignment of Rents and Financing Statement executed by Construction in favor of Agent, in
substantially the form of Exhibit “J”, as the same may be amended, supplemented or modified.
“Deed of Trust-Port Lavaca-First Lien” means the Deed of Trust, Security Agreement, Assignment
of Rents and Financing Statement executed by King Xxxxxx in favor of Agent, dated as of October 14,
2004, and recorded in the Official Public Records of Real Property of Xxxxxxx County, Texas under
Clerk’s File No. 00089332, Volume 387, Page 220, a copy of which is attached as Exhibit “K”, as
modified by Modification to Deed of Trust-Port Lavaca-First Lien, and as the same may be further
amended, supplemented or modified from time to time.
“Deed of Trust-Port Lavaca-Second Lien” means the Deed of Trust, Security Agreement,
Assignment of Rents and Financing Statement executed by King Xxxxxx in favor of Agent, in
substantially the form of Exhibit “L”, as the same may be amended, supplemented or modified.
“Deeds of Trust-Market Street” means the Deed of Trust-Market Street-First Lien and the Deed
of Trust-Market Street-Second Lien.
“Deeds of Trust-Port Lavaca” means the Deed of Trust-Port Lavaca-First Lien and the Deed of
Trust-Port Lavaca-Second Lien.
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“Default Rate” means the lesser of (a) the sum of the Applicable Rate in effect from day to
day plus two percent (2.0%) or (b) the Maximum Rate.
“Defaulting Lender” has the meaning specified in Section 5.1.
“Dollar,” “Dollars” and “$” means currency of the United States of America which is at the
time of payment legal tender for the payment of public and private debts in the United States of
America.
“EBITDA” means for Borrower and its Subsidiaries, on a consolidated basis for any period, the
sum of (a) Net Income for such period, plus (b) without duplication and to the extent deducted in
determining such Net Income (i) depreciation and amortization for such period, plus (ii) Interest
Expense for such period, plus (iii) Income Tax Expense for such period, plus (iv) (A) other
non-recurring or extraordinary charges for such period reasonably approved by (i) Agent in good
faith if during any period commencing on October 1 and continuing through the next September 30 (a
“Test Period”) the aggregate amount of all such charges for such Test Period does not exceed ten
percent (10%) of EBITDA for the twelve month period ending on the September 30 immediately
preceding such Test Period, and (ii) Majority Lenders if during any Test Period the aggregate
amount of all such charges for such Test Period is equal to or greater than ten percent (10%) of
EBITDA for the twelve month period ending on the September 30 immediately preceding such Test
Period, minus (B) non-recurring or extraordinary gains for such period.
“Eligible Accounts” means the aggregate of all accounts receivable of Borrowing Base Parties
that satisfy the following conditions: (a) are due and payable within (i) sixty (60) days if the
account debtor is an Investment Grade Person and (ii) forty-five (45) days if the account debtor is
not an Investment Grade Person; (b) have been outstanding less than (i) one hundred twenty (120)
days past the original date of invoice if the account debtor is an Investment Grade Person, and
(ii) ninety (90) days past the original date of invoice if the account debtor is not an Investment
Grade Person; (c) have arisen in the ordinary course of business from services performed by a
Borrowing Base Party to or for the account debtor or the sale by a Borrowing Base Party of goods in
which such Borrowing Base Party had sole ownership where such goods have been shipped or delivered
to the account debtor; (d) represent complete bona fide transactions which require no further act
under any circumstances on the part of any Borrowing Base Party to make such accounts receivable
payable by the account debtor; (e) the goods the sale of which gave rise to such accounts
receivable were shipped or delivered to the account debtor on an absolute sale basis and not on
consignment, a sale or return basis, a guaranteed sale basis, a xxxx and hold basis, or on the
basis of any similar understanding; (f) do not constitute pre-xxxxxxxx or other unearned income;
(g) do not constitute Bonded Receivables; (h) the goods the sale of which gave rise to such
accounts receivable were not, at the time of sale thereof, subject to any Lien, except
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the security interest in favor of Agent created by the Loan Documents and Liens permitted by
Sections 10.2(h) and 10.2(k); (i) are not subject to any provisions prohibiting assignment or
requiring notice of or consent to such assignment, to the extent notice is not given or consent is
not obtained; (j) are subject to a perfected, first priority security interest in favor of Agent
and are not subject to any other Lien other than Liens permitted by Sections 10.2(h) and 10.2(k);
(k) are not the subject of a right of setoff, counterclaim, defense, allowance, dispute, or
adjustment affirmatively asserted by the account debtor, the existence of which the Borrower has
actual knowledge (but only with respect to the amount subject to dispute or adjustment and
excluding normal discounts for prompt payment), and the goods of sale which gave rise to such
accounts receivable have not been returned, rejected, repossessed, lost, or damaged; (l) the
account debtor is not insolvent or the subject of any bankruptcy or insolvency proceeding and has
not made an assignment for the benefit of creditors, suspended normal business operations,
dissolved, liquidated, terminated its existence, ceased to pay its debts as they become due, or
suffered a receiver or trustee to be appointed for any of its assets or affairs; (m) are not
evidenced by chattel paper or any instrument of any kind; (n) are owed by a Person or Persons that
are citizens of or organized under the laws of the United States or any State and are not owed by
any Person organized under the laws of a jurisdiction located outside of the United States of
America (“Foreign Persons”), provided, that accounts receivable owed by Foreign Persons may
constitute Eligible Accounts if (i) payment of such accounts receivable is insured by a foreign
risk insurance policy acceptable to Majority Lenders and the proceeds of such policy have been
assigned to Agent by an instrument satisfactory to Majority Lenders, (ii) payment of such accounts
receivable is covered by a letter of credit in form and substance satisfactory to Majority Lenders,
issued by a financial institution satisfactory to Majority Lenders, and the proceeds of such letter
of credit have been assigned to Agent by an instrument satisfactory to Majority Lenders, or (iii)
Majority Lenders specifically approve such accounts receivable as Eligible Accounts; (o) if any
accounts receivable are owed by the United States of America or any department, agency, or
instrumentality thereof, the Federal Assignment of Claims Act shall have been complied with; (p)
are not owed by an Affiliate of any Borrowing Base Party; and (q) do not include any amount which
constitutes retainage. No account receivable owed by an account debtor to any Borrowing Base Party
shall be included as an Eligible Account if more than twenty percent (20%) of the balances then
outstanding on accounts receivable owed by such account debtor and its Affiliates to Borrowing Base
Parties have remained unpaid for more than eighty-nine (89) days from the dates of their original
invoices. The amount of any Eligible Accounts owed by an account debtor to any Borrowing Base Party
shall be reduced by the amount of all “contra accounts” and other obligations owed by any Borrowing
Base Party to such account debtor. In the event that at any time the accounts receivable from any
account debtor and its Affiliates to Borrowing Base Parties exceed thirty-five percent (35%) of the
accounts receivable of Borrowing Base Parties, the accounts receivable from such account debtor and
its Affiliates shall not constitute Eligible Accounts to the extent to
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which such accounts receivable exceed thirty-five percent (35%) of the accounts receivable of
Borrowing Base Parties.
“Eligible Assignee” means any of (a) a Lender or any Affiliate of a Lender, (b) a commercial
bank organized under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000.00, (c) a commercial bank organized under the laws of
a country which is a member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having a combined capital and surplus of at least
$100,000,000.00, provided that such bank is acting through a branch or agency located in the United
States, and (d) any other Person approved by Agent, and so long as no Event of Default has occurred
and is continuing, who is reasonably acceptable to Borrower.
“ENSR Memo” means that Environmental Review Memorandum dated October 11, 2004 prepared by Xxxx
Xxx and Xxxx Rutkousis of ENSR Corporation addressing certain environmental issues at one or more
of the Florida Property and the Market Street Property.
“Environmental Laws” means any and all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, or the management, release or threatened release of Hazardous Substance or to
health and safety matters relating to the same.
“Environmental Report-Florida Property” means the Interim Remedial Action Plan (Revised) dated
May 27, 2003 prepared by URS Corporation.
“Environmental Report-Market Street Property” means the Phase I Environmental Site Assessment,
Orion Construction, LP, 00000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxx 00000, Enercon Project No.
ENMISC0195, dated September 15, 2004, and prepared by Enercon Services, Inc.
“Environmental Report-Port Lavaca Property” means the Phase I Environmental Site Assessment,
King Xxxxxx Marine Service, LP, 000 Xxxxxxx 000, Xxxx Xxxxxx, Xxxxx 00000, Enercon Project No.
ENMISC0195, dated September 15, 2004, and prepared by Enercon Services, Inc.
“Environmental Reports” means (a) the Environmental Report-Florida Property, (b) the
Environmental Report-Market Street Property, (c) the Environmental Report-Port Lavaca Property,
and (d) the ENSR Memo.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations and published interpretations thereof.
“Event of Default” has the meaning specified in Section 12.1.
“Excess Cash Flow” means, for Borrower and its Subsidiaries, on a consolidated basis, for any
period, (a) EBITDA for such period, minus (b) the sum of (i) Capital Expenditures for such period,
plus (ii) Cash Taxes for such period, plus (iii)(A) Scheduled Principal, (B) all unscheduled
voluntary prepayments of principal on the Real Estate Term Loan and the Acquisition Term Loan for
such period, and (C) mandatory prepayments of principal on the Real Estate Term Loan and the
Acquisition Term Loan pursuant to Section 3.5(b), (c) or (d) and Section 4.5(b), (c) or (d), plus
(iv) Interest Expense for such period.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Existing Letters of Credit” means (a) that certain Letter of Credit No. SC1346 in the amount
of $498,688.00 issued by Amegy Bank for the benefit of Signal Mutual Indemnity Association Ltd. c/o
Signal Administration Inc. for the account of Construction, and (b) that certain Letter of Credit
No. SC2015 in the amount of $106,447.00 issued by Amegy Bank for the benefit of Signal Mutual
Indemnity Association Ltd. c/o Signal Administration Inc. for the account of King Xxxxxx.
“X. Xxxxxx” means X. Xxxxxx Construction, LLC, a Louisiana limited liability company, and its
successors and assigns.
“Field Audits” means audits, verifications and inspections of the accounts receivable,
inventory and assets of Borrower and its Subsidiaries, conducted by an independent third Person
selected by Agent.
“Fixed Charge Coverage Ratio” means for Borrower and its Subsidiaries, on a consolidated
basis, as of any date, (a) EBITDA for the period ended as of such date, minus (b) the greater of
(i) Maintenance Capital Expenditures for the period ended as of such date or (ii) $3,000,000.00,
divided by the sum of (c) Scheduled Principal for the period ended as of such date, plus (d)
Interest Expense for the period ended as of such date, plus (e) Cash Taxes for the period ended as
of such date.
“Florida Property” means the real property and improvements owned by Xxxxxxx, located at 0000
X. Xxxxxxxx, Xxxxx, Xxxxxxx 00000-0000 and further described in and covered by the
Mortgage-Florida.
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“Florida Remediation” means the environmental remediation conducted at the Florida Property
pursuant to the Environmental Report-Florida Property.
“Funded Debt” means, at any time, for Borrower and its Subsidiaries, on a consolidated basis,
the sum of (a) all indebtedness for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments, including the Notes, (b) the Senior Subordinated Note and Other
Subordinated Debt, (c) Capital Lease Obligations, (d) all obligations (including contingent
obligations) incurred in connection with guaranties of the indebtedness for borrowed money of
another Person (but excluding Bond Obligations), (e) all obligations to pay the deferred purchase
price of property or services (but excluding trade accounts payable or trade notes in the ordinary
course of business that are not past due by more than ninety (90) days), (f) all indebtedness
secured by a Lien on the property of Borrower or its Subsidiaries (in which event the amount
thereof shall not be deemed to exceed the fair market value of such property), and (g) the Letter
of Credit Liabilities, but excluding in any event, all obligations and indebtedness related to Cash
Secured Letters of Credit.
“GAAP” means generally accepted accounting principles in the United States of America,
consistently applied.
“Governmental Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing regulatory or administrative powers or functions of or pertaining to
government.
“Guarantors” means Construction, King Xxxxxx, Xxxxxxx and OAS.
“Guaranty Agreement” means a Guaranty Agreement executed by each Guarantor in favor of Agent
in substantially the form of Exhibit “N”, as the same may be amended, supplemented or modified.
“Hazardous Substance” means any substance, product, waste, pollutant, material, chemical,
contaminant, constituent, or other material which is or becomes listed, regulated, or addressed
under any Environmental Law, including, without limitation, asbestos, petroleum, and
polychlorinated biphenyls.
“Income Tax Expense” means for Borrower and its Subsidiaries, on a consolidated basis for any
period, all local, state and federal income and franchise taxes paid or due to be paid during such
period and reflected upon Borrower’s income statement.
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“Interest Expense” means for Borrower and its Subsidiaries, on a consolidated basis, for any
period, the sum of all cash interest expense paid or required by its terms to be paid during such
period, as determined in accordance with GAAP applied consistently.
“Interest Period” means with respect to LIBOR Loans, each period commencing on the date such
Loans are made or Converted from Loans of another Type or, in the case of each subsequent,
successive Interest Period applicable to a LIBOR Loan, each period commencing on the last day of
the immediately preceding Interest Period with respect to such LIBOR Loan, and in each case ending
on the numerically corresponding day in the calendar month that is one, two or three months
thereafter, as Borrower may select as provided in Sections 2.6, 3.6, 4.6 or 5.7; provided, however,
that (a) each Interest Period which would otherwise end on a day which is not a Business Day shall
end on the next succeeding Business Day; provided that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day, (b) any Interest Period which
begins on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have ended if there were a numerically
corresponding day in such calendar month, (c) no Interest Period for any LIBOR Loan which is a
Revolving Advance may extend beyond the Termination Date Revolving Advances (and any proposed LIBOR
Loan which is a Revolving Advance with an Interest Period which would extend beyond the Termination
Date Revolving Advances shall be a Prime Rate Loan maturing on the Termination Date Revolving
Advances), (d) no Interest Period for any LIBOR Loan, which is a Real Estate Term Loan Portion, may
extend beyond the Maturity Date Real Estate Term Loan (and any proposed LIBOR Loan which is a Real
Estate Term Loan Portion with an Interest Period which would extend beyond the Maturity Date Real
Estate Term Loan shall be a Prime Rate Loan maturing on the Maturity Date Real Estate Term Loan),
(e) no Interest Period for any LIBOR Loan which is an Acquisition Advance may extend beyond the
Maturity Date Acquisition Term Loan (and any proposed LIBOR Loan which is an Acquisition Advance
with an Interest Period which would extend beyond the Maturity Date Acquisition Term Loan shall be
a Prime Rate Loan maturing on the Maturity Date Acquisition Term Loan), (f) for all LIBOR Loans no
more than five (5) Interest Periods for each of the Revolving Advances, Real Estate Term Loan
Portions or the Acquisition Advances, respectively, shall be in effect at the same time, and (g) no
Interest Period shall have a duration of less than thirty (30) days and, if the Interest Period for
any LIBOR Loan would otherwise be a shorter period, such Loan shall be a Prime Rate Loan.
“Investment Grade Person” means a Person organized under the laws of the United States of
America or a state thereof who has (a) a rating from Standard & Poor’s
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Corporation of (i) A-1 or better for its commercial paper or (ii) BBB or better for its long term
debt, or (b) a rating from Xxxxx’x Investor Service of (i) P-1 or better for its commercial paper
or (ii) Baa or better for its long term debt.
“Issuing Bank” means Amegy Bank National Association in its capacity of the issuer of Letters
of Credit.
“KFMSGP” means KFMSGP, LLC, a Texas limited liability company and the general partner of King
Xxxxxx, and its successors and assigns
“KFMSLP” means KFMSLP, LLC, a Nevada limited liability company, and its successors and
assigns.
“King Xxxxxx” means King Xxxxxx Marine Service, L.P., a Texas limited partnership, and its
successors and assigns.
“Letter of Credit” means any letter of credit issued by Issuing Bank for the account of
Borrower pursuant to Article II and the Existing Letters of Credit. For clarification, Cash
Secured Letters of Credit shall not be deemed to be Letters of Credit for purposes of this
Agreement.
“Letter of Credit Application” means Issuing Bank’s standard form of letter of credit
application and agreement, as the same may be amended, modified, renewed, extended, or
supplemented.
“Letter of Credit Liabilities” means, at any time, the aggregate undrawn face amounts of all
outstanding Letters of Credit (including the Existing Letters of Credit).
“LIBOR Loans” means Loans the interest rates on which are determined on the basis of the rates
referred to in the definition of “LIBOR Rate”.
“LIBOR Margin” has the meaning given to such term in the definition of the term “Applicable
Rate”.
“LIBOR Rate” means, for any LIBOR Loan, for any Interest Period therefor, the rate per annum
offered for Dollar deposits in an amount comparable to the principal amount of such LIBOR Loan for
a period of time equal to such Interest Period as of 11:00 A.M. City of London, England time two
(2) London Business Days prior to the first date of such Interest Period as shown on the display
designated as “British Bankers Association Interest Settlement Rates” on the Bloomberg system
(“Bloomberg”); provided, however, that if such rate is not available on Bloomberg then such offered
rate shall be otherwise independently determined by Agent from an alternate,
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substantially similar independent source available to Agent and recognized in the banking
industry.
“Lien” means any lien, mortgage, security interest, tax lien, pledge, charge, hypothecation,
assignment, preference, priority, or other encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or title retention agreement), whether arising by
contract, operation of law, or otherwise.
“Loan Documents” means this Agreement and all promissory notes, security agreements, deeds of
trust, assignments, letters of credit, guaranties, and other instruments, documents, and agreements
executed and delivered pursuant to or in connection with this Agreement, as such instruments,
documents, and agreements may be amended, modified, renewed, extended, or supplemented.
“Loans” means Revolving Advances, Real Estate Term Loan Portions and Acquisition Advances.
“London Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions are generally authorized or obligated by laws or executive order to close in the City
of London, England.
“Maintenance Capital Expenditures” means, for Borrower and its Subsidiaries, all Capital
Expenditures related to extending the life of, or maintaining the working condition of, existing
assets. Maintenance Capital Expenditures does not include capital spending for new assets (so-
called “growth capital expenditures”).
“Majority Lenders” means Lenders holding sixty-six and two-thirds percent (66b%) or more of
the Combined Commitments.
“Market Street-New Property” means the 11.59 acre tract constituting part of the Market Street
Property.
“Market Street Property” means the real property and improvements owned by Construction,
located at 00000 Xxxxxx Xxxxxx and 00000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxx 00000 and further
described in and covered by the Deeds of Trust-Market Street.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations,
property or condition (financial or otherwise) of Borrower and its Subsidiaries, taken as a whole,
or any Obligated Party (other than OAS) and its Subsidiaries, taken as a whole, (b) the ability of
Borrower to pay the Obligations or the ability of Borrower or any Obligated Party to perform its
respective material obligations under this Agreement or any of the other Loan Documents, or (c) the
validity or
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enforceability of this Agreement or any of the other Loan Documents, or the rights or remedies of
Lender hereunder or thereunder.
“Maturity Date Acquisition Term Loan” means September 30, 2010.
“Maturity Date Real Estate Term Loan” means September 30, 2010.
“Maximum Rate” means the maximum rate of nonusurious interest permitted from day to day by
applicable law, including Chapter 303 of the Texas Finance Code (the “Code”) (and as the same may
be incorporated by reference in other Texas statutes). To the extent that Chapter 303 of the Code
is relevant to Lenders for the purposes of determining the Maximum Rate, Lenders elect to determine
such applicable legal rate pursuant to the “weekly ceiling,” from time to time in effect, as
referred to and defined in Chapter 303 of the Code; subject, however, to the limitations on such
applicable ceiling referred to and defined in the Code, and further subject to any right any Lender
may have subsequently, under applicable law, to change the method of determining the Maximum Rate.
“Merger” shall have the meaning given to such term in Section 10.3.
“Xxxxxxx” means Xxxxxxx Marine Construction, Inc., a Florida corporation, and its successors
and assigns.
“Modification to Deed of Trust-Market Street-First Lien” means the First Modification to Deed
of Trust-Market Street-First Lien, executed by Construction in favor of Agent, in substantially the
form of Exhibit “U”.
“Modification to Deed of Trust-Port Lavaca-First Lien” means the First Modification to Deed of
Trust-Port Lavaca-First Lien, executed by King Xxxxxx in favor of Agent, in substantially the form
of Exhibit “V”.
“Modifications to Real Estate Term Notes” means the First Modifications to Real Estate Term
Notes executed by Borrower in favor of each Lender who has a Commitment-Real Estate Term Loan,
respectively, in substantially the form of Exhibit “T”, properly completed.
“Mortgage-Florida” means the Mortgage executed by Xxxxxxx in favor of Agent, in substantially
the form of Exhibit “M”, as the same may be amended, supplemented or modified.
“Net Income” means, for Borrower and its Subsidiaries for any period, the consolidated net
income (or loss) of Borrower and its Subsidiaries for such period, calculated in accordance with
GAAP.
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“Net Worth” means, at any particular time, all amounts which, in conformity with GAAP, would
be included as stockholders’ capital on a consolidated balance sheet of Borrower and its
Subsidiaries.
“No Default Certificate” means a certificate in the form of Exhibit “R” hereto, fully
completed and executed by Borrower.
“Notes” means the Revolving Credit Notes, the Real Estate Term Notes and the Acquisition Term
Notes.
“OAS” means Orion Administrative Services, Inc., a Texas corporation, and its successors and
assigns.
“Obligated Party” means each Guarantor and any other Person who is or becomes a party to any
agreement pursuant to which such Person guarantees or secures payment and performance of the
Obligations or any part thereof.
“Obligations” means all obligations, indebtedness, and liabilities of Borrower to Agent,
Issuing Bank, and Lenders, or any of them, arising pursuant to this Agreement or any of the Loan
Documents, under any treasury management arrangements with any Lender or under any Rate Management
Transactions to which a Lender or its Affiliate is a party, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising, including, without limitation, all of Borrower’s contingent reimbursement
obligations in respect of Letters of Credit, and all interest accruing thereon and all reasonable
and documented attorneys’ fees and other expenses incurred in the enforcement or collection
thereof.
“OCGP” means OCGP, LLC, a Texas limited liability company and the general partner of
Construction, and its successors and assigns.
“OCLP” means OCLP, LLC, a Nevada limited liability company, and its successors and assigns.
“Organizational Documents” means, for any Person, (a) the articles of incorporation and bylaws
of such Person if such Person is a corporation, (b) the articles of organization and regulations of
such Person if such Person is a limited liability company, (c) the limited partnership agreement of
such Person if such Person is a limited partnership, or (d) the documents under which such Person
was created and is governed if such person is not a corporation, limited liability company or
limited partnership.
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“Other Subordinated Debt” means Debt of Borrower to any Person, the payment of which has been
subordinated to the payment of the Obligations in a manner satisfactory to Agent and by a document
satisfactory to Agent, but excluding the Senior Subordinated Note Debt.
“Permitted Liens” shall have the meaning set forth in Section 10.2 of this Agreement.
“Person” means any individual, corporation, limited liability company, business trust,
association, company, partnership, joint venture, governmental authority, or other entity.
“Pledge Agreement-Borrower-Ownership Interests” means the Security Agreement and Collateral
Assignment executed by Borrower in favor of Agent in substantially the form of Exhibit “E”, as the
same may be amended, supplemented or modified.
“Pledge Agreement-Borrower-Stock” means the Security Agreement-Pledge executed by Borrower in
favor of Agent in substantially the form of Exhibit “F”, as the same may be amended, supplemented
or modified.
“Pledge Agreement-Subsidiary-Ownership Interests” means a Security Agreement and Collateral
Assignment executed by each of Construction, KFMSGP, KFMSLP, OCGP and OCLP in favor of Agent in
substantially the form of Exhibit “G”, as the same may be amended, supplemented or modified.
“Pledge Agreement-Subsidiary-Stock” means a Security Agreement-Pledge executed by
Construction in favor of Agent in substantially the form of Exhibit “H”, as the same may be
amended, supplemented or modified.
“Port Lavaca Property” means the real property and improvements owned by King Xxxxxx, located
at 000 Xxxxxxx 000, Xxxx Xxxxxx, Xxxxx 00000 and further described in and covered by the Deeds of
Trust-Port Lavaca.
“Prime Rate” means that variable rate of interest per annum established by Agent from time to
time as its prime rate which shall vary from time to time. Such rate is set by Agent as a general
reference rate of interest, taking into account such factors as Agent may deem appropriate, it
being understood that many of Agent’s commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate charged to any customer and that Lenders
may make various commercial or other loans at rates of interest having no relationship to such
rate.
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“Prime Rate Loans” means Loans that bear interest at rates based upon the Prime Rate.
“Prime Rate Margin” has the meaning given to such term in the definition of the term
“Applicable Margin”.
“Pro Rata”, “Pro Rata Share” or “Pro Rata Part” means for each Lender (a) with respect to the
Revolving Advances, when no Revolving Advance is outstanding, such Lender’s Commitment
Percentage-Revolving Advances, (b) otherwise, the proportion which the portion of outstanding
Revolving Advances, the Real Estate Term Loan and the Acquisition Advances, respectively, owed to
such Lender bears to the aggregate outstanding Revolving Advances, the Real Estate Term Loan and
the Acquisition Advances, respectively, owed to all Lenders at the time in question.
“Pro Rata Share-Total” means for each Lender the proportion which the portion of the sum of
the outstanding Revolving Advances plus the Real Estate Term Loan plus the Acquisition Advances
owed to such Lender bears to the sum of the aggregate outstanding Revolving Advances, the Real
Estate Term Loan and the Acquisition Advances owed to all Lenders at the time in question.
“Rate Management Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between Borrower and any Lender or any Lender’s
Affiliates which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
“Rate Management Transaction Obligations” means any and all obligations, contingent or
otherwise, whether now existing or hereafter arising, of Borrower to any Lender or any Lender’s
Affiliates arising under or in connection with any Rate Management Transaction.
“Real Estate Term Loan” means the loan made by Lenders to Borrower pursuant to Article III.
“Real Estate Term Loan Portions” means amounts of the outstanding principal amount of the Real
Estate Term Loan which have been so designated by Borrower pursuant to Section 3.6.
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“Real Estate Term Notes” means the promissory notes in the original aggregate principal amount
of $41,500,000.00 dated October 14, 2004, executed by Prior Borrower and payable to the order of
the Lenders who have Commitments-Real Estate Term Loan, respectively, and in the aggregate
principal amount of $23,547,500.00 as of the date of this Agreement, copies of which are attached
as Exhibit “B”, which have been modified by Modifications to Real Estate Term Notes, and as the
same may be further amended, supplemented or modified from time to time and all promissory notes
executed in renewal, extension, modification or substitution therefor.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as
the same may be amended or supplemented.
“Regulatory Change” means, with respect to any Lender, any change after the date of this
Agreement in United States federal, state, or foreign laws or regulations (including Regulation D)
or the adoption or making after such date any interpretations, directives, or requests applying to
a class of banks (including any Lender) of or under any United States federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any court or governmental
or monetary authority charged with the interpretation or administration thereof.
“Reserve Requirement” means the aggregate maximum reserve percentages (including any marginal,
special, supplemental or emergency reserves, and expressed as a decimal) established by the Federal
Reserve Board or any other United States banking authority to which Lender is subject for
“Eurocurrency Liabilities” (as defined in Regulation D). Such reserve percentages shall include,
without limitation, those imposed under Regulation D of the Board of Governors of the Federal
Reserve System.
“Revolving Advance” means a loan or loans pursuant to Article II.
“Revolving Advance Request Form” means a certificate, in substantially the form of Exhibit
“O”, properly completed and signed by Borrower requesting a Revolving Advance.
“Revolving Credit Notes” means the promissory notes executed by Borrower payable to the order
of each Lender, respectively, in substantially the form of Exhibit “A”, properly completed, as the
same may be renewed, extended or modified and all promissory notes executed in renewal, extension,
modification or substitution thereof.
“Revolving Line of Credit” means the credit facility extended by Lenders to Borrower pursuant
to Article II.
“Scheduled Principal” means for Borrower and is Subsidiaries, on a consolidated basis, for any
period, all principal payments required to be made during such period
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under Section 3.4(c) and Section 4.4(c) hereof. Scheduled principal payments on the
Revolving Credit Notes and any mandatory payments made pursuant to Section 3.5 and Section
4.5 hereof shall not constitute Scheduled Principal.
“Security Agreement-Subsidiary-General” means a Security Agreement executed by each
Guarantor in favor of Agent in substantially the form of Exhibit “D”, as the same may be
amended, supplemented or modified.
“Subsidiary” means each Guarantor and any other Person of which or in which Borrower,
any Guarantor or their other Subsidiaries own or control, directly or indirectly, fifty
percent (50%) or more of (a) the combined voting power of all classes having general voting
power under ordinary circumstances to elect a majority of the directors or equivalent body
of such Person, if it is a corporation, (b) the capital interest or profits interest of
such Person, if it is a partnership, limited liability company, joint venture or similar
entity, or (c) the beneficial interest of such Person, if it is a trust, association or
other unincorporated association or organization.
“TCEQ” means the Texas Commission on Environmental Quality.
“Termination Date Acquisition Advances” means 11:00 a.m., Houston, Texas time on
September 30, 2008.
“Termination Date Revolving Advances” means 11:00 a.m., Houston, Texas time on
September 30, 2010, or such earlier date on which the Commitments-Revolving Advances
terminate as provided in this Agreement.
“Total Leverage Ratio” means, as of any date, (a) Funded Debt as of such date divided
by (b) EBITDA for the period ended as of such date.
“Type” means the type of Loan (i.e. Prime Rate Loan or LIBOR Loan).
“Unmatured Event of Default” means the occurrence of an event or the existence of a
condition which, with the giving of notice or the passage of time would constitute an Event
of Default.
Section 1.2.
Other Definitional Provisions. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. The words “hereof”,
“herein”, and “hereunder” and words of similar import referring to this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise
specified, all Article and Section references pertain to this Agreement. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP. Terms
used herein that are defined in the Uniform Commercial Code as adopted by the State of Texas,
unless otherwise defined herein, shall have the meanings
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specified in the Uniform Commercial Code as adopted by the State of Texas. In the event that, at
any time, Borrower has no Subsidiaries, all references to the Subsidiaries of Borrower and the
consolidation of certain financial information shall be deemed to be inapplicable until such time
as Borrower has a Subsidiary.
ARTICLE II.
Revolving Line of Credit and Letters of Credit
Section 2.1. Revolving Line of Credit. Subject to the terms and conditions of this Agreement,
each Lender agrees severally to extend a portion of the Revolving Line of Credit to Borrower by
making one or more Revolving Advances to Borrower from time to time from the date hereof to and
including the Termination Date Revolving Advances in an aggregate principal amount at any time
outstanding up to but not exceeding such Lender’s Commitment-Revolving Advances; provided that the
aggregate amount of all Revolving Advances at any time outstanding shall not exceed the lesser of
(a) the Combined Commitments-Revolving Advances minus the Letter of Credit Liabilities or (b) the
Borrowing Base minus the Letter of Credit Liabilities. Lenders shall have no obligation to make any
Revolving Advance (other than a Revolving Advance to reimburse Issuing Bank for any draw on a
Letter of Credit issued pursuant to the terms hereof) if an Event of Default or a Bonding Default
has occurred and is continuing. The obligations of Lenders under the Commitments-Revolving
Advances are several and not joint. The failure of any Lender to make a Revolving Advance required
to be made by it shall not relieve any other Lender of its obligation to make its Revolving
Advance, and no Lender shall be responsible for the failure of any other Lender to make the
Revolving Advance to be made by such other Lender. No Lender shall ever be required to lend
hereunder in excess of its legal lending limit. Subject to the foregoing limitations, and the other
terms and provisions of this Agreement, Borrower may borrow, repay, and reborrow hereunder.
Section 2.2. Revolving Credit Notes. The obligation of Borrower to repay the Revolving
Advances shall be evidenced by a Revolving Credit Note executed by Borrower, payable to the order
of each Lender, respectively, in the principal amount of such Lender’s Commitment-Revolving
Advances. From time to time a new Revolving Credit Note may be issued to another Lender hereunder
as such Person becomes a party to this Agreement. From time to time the Agent may require a
Revolving Credit Note to be exchanged for a newly issued Revolving Credit Note to accurately
reflect the amount of each Lender’s Commitment-Revolving Advances hereunder. Upon the request of
Agent, Borrower shall execute and deliver to Agent such new Revolving Credit Notes as requested by
Agent; provided, however, that in no event will Borrower be required to issue
Revolving Credit Notes in an aggregate amount which exceeds the amount of the Combined
Commitment-Revolving Advances.
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Section 2.3. Interest. The unpaid principal amount of the Revolving Advances (and, therefore,
the Revolving Credit Notes) shall bear interest prior to maturity at a varying rate per annum equal
from day to day to the lesser of (a) the Maximum Rate or (b) the Applicable Rate in effect from day
to day, and each change in the rate of interest charged on the Revolving Advances shall become
effective, without notice to Borrower, on the effective date of each change in the Applicable Rate
or the Maximum Rate, as the case may be; provided, however, if at any time the rate of interest
specified in clause (b) preceding shall exceed the Maximum Rate, thereby causing the interest on
the Revolving Advances to be limited to the Maximum Rate, then any subsequent reduction in the
Applicable Rate shall not reduce the rate of interest on the Revolving Advances below the Maximum
Rate until the aggregate amount of interest actually accrued on the Revolving Advances equals the
amount of interest which would have accrued on the Revolving Advances if the interest rate
specified in clause (b) preceding had at all times been in effect. Notwithstanding the foregoing,
if any Event of Default has occurred and is continuing, the outstanding principal of the Revolving
Advances shall, upon the determination of the Majority Lenders (notice of which is provided by
Agent to Borrower), bear interest at the Default Rate.
Section 2.4. Repayment of Principal and Interest. (a) Accrued and unpaid interest on the
Revolving Advances (and, therefore, the Revolving Credit Notes) shall be payable as follows:
(i) in the case of each Revolving Advance which is a Prime Rate Loan, on each March
31, June 30, September 30 and December 31, commencing September 30, 2007;
(ii) in the case of each Revolving Advance which is a LIBOR Loan, on the last day of
each Interest Period therefor;
(iii) upon the payment or prepayment (mandatory or optional) of any Revolving Advance
or the Conversion of any Revolving Advance (but only on the principal amount so paid,
prepaid, or Converted); and
(iv) for all Revolving Advances, on the Termination Date Revolving Advances.
(b) The principal amount of the Revolving Advances (and, therefore, the Revolving Credit
Notes) shall be due and payable on the earlier of (i) the Termination Date Revolving Advances or
(ii) such other dates on which the Revolving Advances are or may be required to be paid pursuant to
this Agreement.
(c) Notwithstanding the foregoing, interest payable at the Default Rate shall be payable from
time to time on demand.
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Section 2.5. Requests for Revolving Advances. (a) As long as the Autopay Agreement is in
effect, Revolving Advances which are to be Prime Rate Loans may be made as provided in the Autopay
Agreement, and Borrower shall not be required to request a Revolving Advance directly from Agent by
means of a Revolving Advance Request Form.
(b) The provisions of this paragraph shall apply (i) to all requests for Revolving Advances
which are to be LIBOR Loans, (ii) if Borrower so chooses, (iii) if the Autopay Agreement is not in
effect, or (iv) if the Available Amount (as defined in the Autopay Agreement) is, or has been
declared to be, equal to zero. Borrower shall request each Revolving Advance by delivering to
Agent a Revolving Advance Request Form (i) stating the amount of the Revolving Advance, (ii)
stating the date on which Borrower desires that the Revolving Advance be funded, (iii) stating the
Type of the Revolving Advance, and (iv) if such Revolving Advance is a LIBOR Loan, designating the
Interest Period thereof. Each Revolving Advance Request Form shall be delivered to Agent at least
(i) one (1) Business Day before the date on which Borrower desires that the Revolving Advance be
funded in the case of each Revolving Advance which is to be a Prime Rate Loan and (ii) at least
three (3) Business Days before the date on which Borrower desires that the Revolving Advance be
funded in the case of each Revolving Advance which is to be a LIBOR Loan; provided that (x) no
Revolving Advance which is a LIBOR Loan may be in an amount which is less than $1,000,000.00, and
(y) at any time there can be no more than five (5) Interest Periods in effect for the Revolving
Advances. Borrower at any time may redesignate the amounts of, and Convert and Continue the
Revolving Advances, but only to be effective from and after the end of the Interest Period therefor
if a Revolving Advance is a LIBOR Loan, and subject to the terms and provisions of this Agreement,
including Sections 5.7, 5.8 and 5.9 hereof. Prior to making any Revolving Advance, Lender may
require that Borrower deliver a Borrowing Base Certificate dated a recent date acceptable to Lender
evidencing that the amount of the outstanding Revolving Advances plus the requested Revolving
Advance is less than the lesser of the Combined Commitments-Revolving Advances and the Borrowing
Base. The Agent shall promptly notify each Lender of the contents of each such notice. No later
than 11:00 a.m. Houston, Texas time on the date specified for each Revolving Advance hereunder,
each Lender shall make available to Agent at its office specified herein in immediately available
funds, its Pro Rata Share of each requested Revolving Advance. After Agent’s receipt of such funds
and subject to the other terms and conditions of this Agreement, Agent shall make each Revolving
Advance available to the Borrower.
Section 2.6. Use of Proceeds. The proceeds of Revolving Advances (a) were originally used to
partially finance the acquisition of the stock of Orion Marine Group Holdings, Inc., a Nevada
corporation by Borrower (when it was
Hunter Acquisition Corp., a Delaware corporation) and to refinance existing indebtedness, and
(b) shall be used to refinance existing indebtedness for general working capital purposes and for
capital expenditures.
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Section 2.7. Mandatory Prepayment. If at any time the outstanding principal amount of the
Revolving Advances plus the Letter of Credit Liabilities exceeds the Borrowing Base, Borrower shall
immediately prepay the outstanding Revolving Advances by the amount of the excess plus accrued and
unpaid interest on the amount so prepaid or, if no (or insufficient) Revolving Advances are
outstanding, Borrower shall immediately pledge to Agent cash or cash equivalent investments in an
amount equal to the excess as security for the Letter of Credit Liabilities.
Section 2.8. Unused Commitment Fee; Reduction or Termination of Combined Commitments-Revolving
Advances. Borrower agrees to pay to Agent for the Pro Rata-Revolving Advances benefit of the
Lenders a commitment fee on the average daily unused portion of the Combined Commitments-Revolving
Advances, from and including the Closing Date to, but excluding the Termination Date Revolving
Advances, at the rate set forth below based on a 360 day year and the actual number of days
elapsed, payable quarterly, in arrears, and on the Termination Date Revolving Advances.
Total Leverage Ratio |
Commitment Fee | |||
Less than 1.00 to 1.00 |
0.200 | % | ||
Equal to or greater than 1.00 to 1.00 but less than 1.50 to 1.00 |
0.250 | % | ||
Equal to or greater than 1.50 to 1.00 but less than 2.00 to 1.00 |
0.250 | % | ||
Equal to or greater than 2.00 to 1.00 but less than 2.50 to 1.00 |
0.300 | % | ||
Equal to or greater than 2.50 to 1.00 |
0.375 | % | ||
For the purpose of calculating the commitment fee hereunder, the Combined Commitments-Revolving
Advances shall be deemed utilized by the amount of all outstanding Revolving Advances and Letter of
Credit Liabilities. Borrower shall have the right at any time to terminate in whole or from time
to time to irrevocably reduce in part the Combined Commitments-Revolving Advances upon at least
three (3) Business Days prior notice to Agent specifying the effective date thereof, whether a
termination or reduction is being made, and the amount of any partial reduction; provided, however,
the Combined Commitments-Revolving Advances shall never be reduced below an amount equal to the
Letter of Credit Liabilities. Any such reduction in the Combined Commitments-Revolving Advances
shall take effect Pro Rata. Simultaneously with giving such notice, Borrower shall prepay the
amount by which the unpaid principal amount of the
Revolving Advances plus the Letter of Credit Liabilities exceeds the Combined Commitments-Revolving
Advances (after giving effect to such notice) plus accrued and unpaid interest on the principal
amount so prepaid. The Combined Commitments-Revolving Advances may not be reinstated after they
have been terminated or reduced.
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Section 2.9. Letters of Credit. Subject to the terms and conditions of this Agreement, Issuing
Bank agrees to issue one or more Letters of Credit for the account of Borrower from time to time
from the date hereof to and including the Termination Date Revolving Advances; provided, however,
that the Letter of Credit Liabilities shall not at any time exceed the least of (a) $2,000,000.00,
(b) the Combined Commitments-Revolving Advances minus the outstanding Revolving Advances, or (c)
the Borrowing Base minus the outstanding Revolving Advances. Each Letter of Credit shall (a) have
an expiration date which is not later than three hundred sixty-five (365) days following the date
of issuance of such Letter of Credit, (b) have an expiration date which is at least fifteen (15)
days prior to the Termination Date Revolving Advances, (unless any such Letter of Credit is fully
secured by cash in a manner acceptable to Agent and Issuing Bank), (c) be payable in United States
dollars, (d) have a minimum face amount of $100,000.00, (e) support a transaction that is entered
into in the ordinary course of any Borrower’s business, and (f) otherwise be satisfactory in form
and substance to Issuing Bank. No Letter of Credit shall require any payment by Issuing Bank to
the beneficiary thereunder pursuant to a drawing prior to the third Business Day following
presentment of a draft and any related documents to Issuing Bank. Issuing Bank shall have no
obligation to issue any Letter of Credit if an Event of Default or Bonding Default has occurred and
is continuing. The Existing Letters of Credit constitute Letters of Credit for all purposes of this
Agreement.
Section 2.10. Procedure for Issuing Letters of Credit. Each Letter of Credit shall be issued
upon receipt by Issuing Bank of written notice from an Authorized Representative requesting the
issuance of such Letter of Credit, which notice shall be received by Issuing Bank at least three
(3) Business Days prior to the requested date of issuance of such Letter of Credit. Such notice
shall be accompanied by a Letter of Credit Application and such other documents and instruments as
Issuing Bank may require. Such notice and application (both front and back sides) may be sent by
fax, provided that Borrower holds Issuing Bank harmless with respect to actions taken by Issuing
Bank based upon notices and applications sent by fax. Each request for a Letter of Credit shall
constitute a representation by Borrower to Issuing Bank, Agent and the other Lenders as to each of
the matters set forth in the Borrowing Base Certificate, including representations that (a) the sum
of (i) the outstanding Revolving Advances plus (ii) the Letter of Credit Liabilities plus (iii) the
face amount of the requested Letter of Credit does not exceed the lesser of the Borrowing Base and
the Combined Commitments-Revolving Advances, and (b) no Event of Default or Bonding Default has
occurred and is continuing. Prior to Issuing any Letter of Credit, Issuing Bank may request a
Borrowing Base Certificate from Borrower dated of a
recent date acceptable to Lender evidencing that the statements contained in the preceding
sentence are correct.
Section 2.11. Participation by Lenders. By the issuance of any Letter of Credit and without
any further action on the part of Issuing Bank or any Lender in respect thereof, Issuing Bank
hereby grants to each Lender, and each Lender hereby agrees to acquire from Issuing Bank, a
participation in each such Letter of Credit and the related Letter of Credit Liabilities, effective
upon the issuance thereof without recourse or warranty, equal to such Lender’s Pro
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Rata Part of such Letter of Credit and Letter of Credit Liabilities. Issuing Bank shall provide a
copy of each Letter of Credit to each other Lender promptly after issuance. This agreement to grant
and acquire participations is an agreement between Issuing Bank and Lenders, and neither Borrower
nor any beneficiary of a Letter of Credit shall be entitled to rely thereon. Borrower agrees that
each Lender purchasing a participation from the Issuing Bank pursuant to this Section 2.11 may
exercise all of its rights to payment against the Borrower including the right of setoff, with
respect to such participation as fully as if such Lender were the direct creditor of Borrower in
the amount of such participations.
Section 2.12. Payments Constitute Revolving Advances. Each payment by Issuing Bank pursuant to
a drawing under a Letter of Credit shall constitute and be deemed a Revolving Advance by Issuing
Bank to Borrower under the Revolving Credit Notes and this Agreement as of the day and time such
payment is made by Issuing Bank and in the amount of such payment. Each Lender shall make available
to Issuing Bank in immediately available funds its Pro Rata Share-Revolving Advances of each such
Revolving Advance in the manner provided in Section 2.5 hereof upon notice given by the Issuing
Bank in the manner provided in Section 2.5 for notices given by Agent. Notwithstanding the
foregoing, if, prior to paying a drawing on a Letter of Credit with a Revolving Advance as provided
above, an Event of Default under Section 12.1(d) or (e) shall have occurred or if for any other
reason a Revolving Advance cannot be made, then, each Lender will, on the date on which the
Revolving Advance was to have been made to pay such drawing or such other date as is designated by
Issuing Bank, purchase from Issuing Bank an undivided participation interest in such Letter of
Credit in an amount equal to its Pro Rata Share of the Revolving Advances. Upon request from Agent
(which shall be given by Agent to Lenders immediately following receipt of notice by Agent from
Issuing Bank), each Lender will immediately transfer such amount to Issuing Bank.
Section 2.13. Letter of Credit Fees. Borrower shall pay to Agent for the Pro Rata-Revolving
Advances benefit of the Lenders a letter of credit fee payable on the date each Letter of Credit is
issued in an amount equal to the greater of (a) $300.00, or (b) the applicable percentage set forth
below of the stated amount
of such Letter of Credit based upon a 360 day year for the period during which such Letter of
Credit will remain outstanding:
Total Leverage Ratio |
Letter of Credit Fee | |||
Less than 1.00 to 1.00 |
1.50 | % | ||
Equal to or greater than 1.00 to 1.00 but less than 1.50 to 1.00 |
1.75 | % | ||
Equal to or greater than 1.50 to 1.00 but less than 2.00 to 1.00 |
2.00 | % | ||
Equal to or greater than 2.00 to 1.00 but less than 2.50 to 1.00 |
2.25 | % | ||
Equal to or greater than 2.50 to 1.00 |
2.50 | % | ||
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At the time of issuance of each Letter of Credit, Borrower shall pay to the Issuing Bank a letter
of credit fee in an amount equal to one-eighth of one percent (c%) of the stated amount of such
Letter of Credit. In addition, Borrower shall pay to Issuing Bank (a) at the time of issuance of
any Letter of Credit, all reasonable and documented out-of-pocket costs incurred by Issuing Bank in
connection with the issuance of such Letter of Credit, and (b) upon the payment of any Letter of
Credit, all applicable payment fees. Upon the amendment (including the extension) of any Letter of
Credit, Borrower shall pay to Issuing Bank all applicable amendment fees and to Agent for the Pro
Rata benefit of Lenders a fee calculated as provided in the first sentence of this Section 2.13 for
the period of such extension.
Section 2.14. Obligations Absolute. The obligations of Borrower under this Agreement and the
other Loan Documents, including without limitation the obligation of Borrower to reimburse Issuing
Bank and Lenders, as applicable, for payment of drawings under any Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement and the other Loan Documents under all circumstances, including (a) any
lack of validity or enforceability of any Letter of Credit or any other Loan Document, (b) the
existence of any claim, set-off, counterclaim, defense or other rights which Borrower, any
Obligated Party or any other Person may have at any time against any beneficiary of any Letter of
Credit, Issuing Bank, Agent, any Lender, or any other Person, whether in connection with this
Agreement or any other Loan Document or any unrelated transaction, (c) if any statement, draft or
other document presented under any Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein is untrue or inaccurate in any respect
whatsoever, (d) payment by Issuing Bank under any Letter of Credit against presentation of a draft
or other document which does not comply with the terms of such Letter of Credit in a manner which
is not material, (e) any amendment or waiver of, or any consent to departure
from, any Loan Document or (f) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Section 2.15. Limitation of Liability. Borrower assumes all risks of the acts or omissions of
any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. None of
Issuing Bank, Agent, any Lender or any of their officers, employees or directors shall have any
responsibility or liability to Borrower or any other Person for (a) the failure of any draft to
bear any reference or adequate reference to any Letter of Credit, or the failure of any documents
to accompany any draft at negotiation, or the failure of any Person to surrender or to take up any
Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of
Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit,
each of which requirements, if contained in any Letter of Credit itself, it is agreed may be waived
by Issuing Bank, (b) errors, omissions, interruptions or delays in transmission or delivery of any
messages, (c) the validity, sufficiency or genuineness of any draft or other document, or any
endorsement thereon, even if any such draft, document or endorsement should in fact prove to be in
any and all respects invalid, insufficient, fraudulent or forged or any statement therein is untrue
or inaccurate in any respect, (d) payment by Issuing Bank to the beneficiary of any Letter of
Credit against presentation of any draft or other
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document that does not comply with the terms of the Letter of Credit in a respect which is not
material or (e) any other circumstance whatsoever in making or failing to make any payment under a
Letter of Credit. Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to the
contrary. Notwithstanding the foregoing, Issuing Bank shall be liable to Borrower to the extent of
any direct, but not consequential, damages suffered by Borrower which Borrower proves in a final
nonappealable judgment were caused by (i) Issuing Bank’s willful misconduct or gross negligence or
(ii) Issuing Bank’s willful failure to pay under any Letter of Credit after presentation to it of
documents strictly complying with the terms and conditions of such Letter of Credit.
Section 2.16. Provisions Regarding Electronic Issuance of Letters of Credit. Issuing Bank may
adopt procedures pursuant to which Borrower may request the issuance of Letters of Credit by
electronic means and Issuing Bank may issue Letters of Credit based on such electronic requests.
Such procedures may include the entering by Borrower into the Letter of Credit Applications
electronically. All the procedures, actions and documents referred to in the two preceding
sentences are referred to as “Electronic Applications”. Borrower holds Issuing Bank, Agent and each
Lender harmless with respect to actions taken by Issuing Bank based upon Electronic Applications.
Borrower further agrees to be bound by all the terms and provisions contained in the Letter of
Credit Applications, including, without limitation, the terms and provisions of the Letter of
Credit Applications contained on the reverse side of the paper copies thereof, including the
release and indemnification provisions contained therein.
Section 2.17. Increase of the Combined Commitments-Revolving Advances. (a) At any time prior
to the Termination Date Revolving Advances, the Borrower may effectuate up to two (2) separate
increases in the aggregate Combined Commitments-Revolving Advances (each such increase being a
“Combined Commitments-Revolving Advances Increase”), by designating either one or more of the
existing Lenders (each of which, in its sole discretion, may determine whether and to what degree
to participate in such Combined Commitments-Revolving Advances Increase) or one or more other banks
or other financial institutions (reasonably acceptable to Agent) that at the time agree, in the
case of any such bank or financial institution that is an existing Lender to increase its
Commitment-Revolving Advances as such Lender shall so select (an “Increasing Lender”) and, in the
case of any other such bank or financial institution (an “Additional Lender”), to become a party to
this Agreement; provided, however, that (i) each Combined Commitments-Revolving Advances Increase
shall be in an amount at least equal to $5,000,000.00, (ii) the aggregate amount of all Combined
Commitments-Revolving Advances Increases and Combined Commitments-Acquisition Term Loan Increases
(as defined in Section 4.8) shall not exceed $25,000,000.00, and (iii) all Commitments-Revolving
Advances and Revolving Advances provided pursuant to a Combined Commitments-Revolving Advances
Increase shall be available on the same terms as those applicable to the existing
Commitments-Revolving Advances and Revolving Advances. The sum of the increases in the
Commitments-Revolving Advances of the Additional Lenders upon giving effect to a Combined
Commitments-Revolving Advances
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Increase shall not, in the aggregate, exceed the amount of such Combined Commitments-Revolving
Advances Increase minus the increases in the Combined Commitments-Revolving Advances of the
Increasing Lenders. Borrower shall provide prompt notice of any proposed Combined
Commitments-Revolving Advances Increase pursuant to clause (a) above to Agent. This Section 2.17
shall not be construed to create any obligation on Agent or any Lender to advance or to commit to
advance any credit to Borrower or to arrange for any other Person to advance or to commit to
advance any credit to Borrower.
(b) A Combined Commitments-Revolving Advances Increase shall become effective upon the receipt
by Agent of (i) a fee on the amount of the Combined Commitments-Revolving Advances Increase based
upon prevailing market rates at the time of such Combined Commitments-Revolving Advances Increase,
(ii) an agreement in form and substance reasonably satisfactory to Agent signed by Borrower, each
Increasing Lender and each Additional Lender, as applicable, setting forth the
Commitments-Revolving Advances of each such Lender, and in the case of an Additional Lender,
setting forth the agreement of such Additional Lender to become a party to this Agreement and to be
bound by all the terms and provisions hereof binding upon each Lender, (iii) such evidence of
appropriate authorization on the part of Borrower with respect to such Combined
Commitments-Revolving Advances Increase as Agent may reasonably request, and (iv) a certificate of
an Authorized Representative of
Borrower stating that, both before and after giving effect to such Combined
Commitments-Revolving Advances Increase, no Event of Default or Unmatured Event of Default has
occurred and is continuing, and that all representations and warranties made by Borrower in this
Agreement are true and correct in all material respects, unless such representation or warranty
relates to an earlier date which remains true and correct as of such earlier date.
ARTICLE III.
Real Estate Term Loan
Section 3.1. Real Estate Term Loan. Subject to the terms and conditions of this Agreement,
each Lender who has a Commitment-Real Estate Term Loan agrees severally to make the Real Estate
Term Loan to Borrower in the principal amount of the Combined Commitments-Real Estate Term Loan.
Section 3.2. Real Estate Term Notes. The obligation of Borrower to repay the Real Estate Term
Loan shall be evidenced by the Real Estate Term Notes executed by Borrower, payable to the order of
each Lender who as a Commitment-Real Estate Term Loan, respectively, in the principal amount of
such Lender’s Commitment-Real Estate Term Loan. From time to time a new Real Estate Term Note may
be issued to another Lender hereunder as such Person becomes a party to this Agreement. From time
to time the Agent may require a Real Estate Term Note to be exchanged for a newly issued Real
Estate Term Note to
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accurately reflect the amount of each Lender’s Commitment-Real Estate Term Loan hereunder. Upon the
request of Agent, Borrower shall execute and deliver to Agent such new Real Estate Term Notes as
requested by Agent.
Section 3.3. Interest. The unpaid principal amount of the Real Estate Term Loan (and,
therefore, the Real Estate Term Notes) shall bear interest to but excluding the maturity date
thereof at a varying rate per annum equal from day to day to the lesser of (a) the Maximum Rate or
(b) the Applicable Rate, and each change in the rate of interest charged on the Real Estate Term
Loan shall become effective, without notice to Borrower, on the effective date of each change in
the Applicable Rate or the Maximum Rate, as the case may be; provided, however, if at any time the
rate of interest specified in clause (b) preceding shall exceed the Maximum Rate, thereby causing
the interest on the Real Estate Term Loan to be limited to the Maximum Rate, then any subsequent
reduction in the Applicable Rate shall not reduce the rate of interest on the Real Estate Term Loan
below the Maximum Rate until the aggregate amount of interest accrued on the Real Estate Term Loan
equals the aggregate amount of interest which would have accrued on the Real Estate Term Loan if
the interest rate specified in clause (b) preceding had at all times been in effect.
Notwithstanding the foregoing, if any Event of Default has occurred and is continuing, the
outstanding principal of the Real Estate Term Loan shall, upon
the determination of the Majority Lenders (notice of which is provided by Agent to Borrower),
bear interest at the Default Rate.
Section 3.4. Repayment of Principal and Interest. (a) Accrued and unpaid interest on the Real
Estate Term Loan (and, therefore, the Real Estate Term Notes) shall be due and payable as follows:
(i) in the case of each Real Estate Term Loan Portion which is a Prime Rate Loan, on
each March 31, June 30, September 30 and December 31, commencing September 30, 2007;
(ii) in the case of each Real Estate Term Loan Portion which is a LIBOR Loan, on the
last day of each Interest Period therefor;
(iii) upon the payment or prepayment (mandatory or optional) of any Real Estate Term
Loan Portion or the Conversion of any Real Estate Term Loan Portion (but only on the
principal amount so paid, prepaid, or Converted); and
(iv) for all Real Estate Term Loan Portions, on the Maturity Date Real Estate Term
Loan.
(b) Notwithstanding the foregoing, interest payable at the Default Rate shall be payable from
time to time on demand.
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(c) The principal of the Real Estate Term Loan (and, therefore, the Real Estate Term Notes)
shall be due and payable by Borrower as follows:
(i) Two (2) principal installments each in an amount equal to One Million Four Hundred
Fifty-Two Thousand Five Hundred and No/100 Dollars ($1,452,500.00), shall be due and
payable on September 30, 2007 and December 31, 2007;
(ii) Four (4) principal installments each in an amount equal to Two Million
Seventy-Five Thousand and No/100 Dollars ($2,075,000.00), shall be due and payable on March
31, 2008, June 30, 2008, September 30, 2008 and December 31, 2008;
(iii) Five (5) principal installments each in an amount equal to Two Million Four
Hundred Ninety Thousand and No/100 Dollars ($2,490,000.00), shall be due and payable on
March 31, 2009, June 30, 2009, September 30, 2009, December 31, 2009 and March 31, 2010;
(iv) One (1) principal installment in an amount equal to Two Million Five Hundred
Ninety-Three Thousand Seven Hundred Fifty and No/100 Dollars ($ 2,593,750.00), shall be due
and payable on June 30, 2010; and
(v) a final installment in the amount of all outstanding principal shall be due and
payable on the Maturity Date Real Estate Term Loan.
Section 3.5. Mandatory Prepayment. (a) If at the end of any fiscal year of Borrower,
commencing with the fiscal year ending December 31, 2007, (i) the Total Leverage Ratio is less than
2.00 to 1.00, the Real Estate Term Loan shall be subject to mandatory prepayment in an amount equal
to twenty-five percent (25%) of Excess Cash Flow for such fiscal year, and (ii) the Total Leverage
Ratio is equal to or greater than 2.00 to 1.00, the Real Estate Term Loan shall be subject to
mandatory prepayment in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal
year. Such mandatory prepayments shall be due and payable on that day which is one hundred twenty
(120) days following the last day of each fiscal year of Borrower and shall be applied to the
remaining principal payments due on the Real Estate Term Loan in inverse order of their maturities.
(b) The Real Estate Term Loan shall be subject to mandatory prepayment in an amount equal to
one hundred percent (100%) of the insurance, condemnation or other proceeds received in connection
with any casualty event, condemnation or other loss suffered by Borrower or any Subsidiary (“Event
Proceeds”); provided, however, that (i) if such Event Proceeds are less than or equal to
$500,000.00, no mandatory prepayment shall be required, such Event Proceeds shall be paid to
Borrower, and Borrower shall use such Event Proceeds to repair or restore the assets which gave
rise to such Event Proceeds, and (ii) if such Event Proceeds are greater than $500,000.00, Agent
may determine that no mandatory prepayment is to be required and that such Event Proceeds are to be
paid to Borrower, and, in such event,
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Borrower shall use such Event Proceeds to repair or restore the assets which gave rise to such
Event Proceeds. Such mandatory prepayments shall be due on that date which is ten (10) days
following the date on which Borrower or Agent receives any such Event Proceeds and shall be applied
to the remaining principal payments due on the Real Estate Term Loan in inverse order of their
maturities.
(c) The Real Estate Term Loan shall be subject to mandatory prepayment in an amount equal to
one hundred percent (100%) of the net proceeds of any sale or other disposition of assets of
Borrower or any Subsidiary (“Net Proceeds”); provided, however, that (i) if the aggregate amount of
the Net Proceeds of all such sales or dispositions during any calendar year is less than
$250,000.00, no mandatory prepayment shall be required, (ii) if (A) the aggregate amount of the Net
Proceeds of all such sales or dispositions during any calendar year is equal to or greater than
$250,000.00 but less than $1,000,000.00, and (B) Borrower acquires replacement assets having a cost
at least equal to such Net Proceeds in which Agent has a first priority Lien, no mandatory
prepayment shall be required, and (iii) if the aggregate amount of the Net Proceeds of all such
sales or dispositions during any calendar year is equal to or greater than
$1,000,000.00, Agent may determine that no mandatory prepayment is to be required if Borrower
acquires replacement assets having a cost at least equal to such Net Proceeds in which Agent has a
first priority Lien. Any such mandatory prepayments shall be due on that date which is ten (10)
days following the date on which Borrower or Agent receives any such Net Proceeds which results in
the obligation to make a mandatory prepayment, and shall be applied to the remaining principal
payments due on the Real Estate Term Loan in inverse order of their maturities. Notwithstanding
any provision of this Agreement or any Loan Document to the contrary, Borrower or any Subsidiary
may sell or convey its assets, other than the assets described in the Pledge Agreements, free and
clear of the Liens created by the Loan Documents, provided that any such sale or conveyance is
subject to the provisions of, and in accordance with, this Section 3.5(c).
(d) The Real Estate Term Loan shall be subject to mandatory prepayment in an amount equal to
one hundred percent (100%) of the net proceeds from any issuance of debt securities, excluding (i)
any proceeds from any issuance by Borrower of equity securities and (ii) cash proceeds used in
conjunction with any acquisition; provided however, that the Senior Subordinated Note shall not
constitute debt securities for purposes of this Section 3.5(d). Such mandatory prepayments shall be
due on the date on which such debt securities are issued and shall be applied to the remaining
principal payments due on the Real Estate Term Loan in inverse order of their maturities.
Section 3.6. Designation of Real Estate Term Loan Portions. Not less than two (2) Business
Days prior to the Closing Date, Borrower shall designate the amount of the Real Estate Term Loan
Portions to Lender in writing, and such designation shall specify the Type of each Real Estate Term
Loan Portion and, in the case of each Real Estate Term Loan Portion which is to be a LIBOR Loan,
the duration of the Interest Period therefor; provided that at all times (a) the sum of all the
Real Estate Term Loan Portions shall equal the outstanding
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principal balance of the Real Estate Term Loan, (b) each Real Estate Term Loan Portion shall be in
an amount which is not less than $1,000,000.00, and (c) at any time there can be no more than five
(5) Real Estate Term Loan Portions. Borrower at any time may redesignate the amounts of, and
Convert and Continue the Real Estate Term Loan Portions, but only to be effective from and after
the end of the Interest Period therefor if such Real Estate Term Loan Portion is a LIBOR Loan, and
subject to the terms and provisions of this Agreement, including Sections 5.7, 5.8 and 5.9 hereof.
Section 3.7. Use of Proceeds. The proceeds of the Real Estate Term Loan (a) were originally
used to partially finance the acquisition of the stock of Orion Marine Group Holdings, Inc., a
Nevada corporation by Borrower (when it was Hunter Acquisition Corp., a Delaware corporation) and
(b) shall be used to refinance existing indebtedness and for general working capital purposes.
ARTICLE IV.
Acquisition
Term Loan
Section 4.1. Acquisition Term Loan. Subject to the terms and conditions of this Agreement,
Lenders agree severally to make the Acquisition Term Loan to Borrower in one or more Acquisition
Advances from time to time from the date hereof to and including the Termination Date Acquisition
Advances in an aggregate principal amount up to but not exceeding each such Lender’s
Commitment-Acquisition Term Loan; provided that the aggregate amount of all Acquisition Advances
shall not exceed the Combined Commitments-Acquisition Term Loan. Lenders shall have no obligation
to make any Acquisition Advance if an Event of Default or an Unmatured Event of Default has
occurred and is continuing unless waived by Majority Lenders. The obligations of the Lenders under
the Commitments-Acquisition Term Loan are several and not joint. The failure of any Lender to make
an Acquisition Advance required to be made by it shall not relieve any other Lender of its
obligation to make its Acquisition Advance, and no Lender shall be responsible for the failure of
any other Lender to make an Acquisition Advance to be made by such other Lender. No Lender shall
ever be required to lend hereunder in excess of its legal lending limit. Borrower may not reborrow
any Acquisition Advance which has been repaid. No Acquisition Advance shall be made after the
Termination Date Acquisition Advances.
Section 4.2. Acquisition Term Notes. The obligation of Borrower to repay Acquisition Term Loan
shall be evidenced by the Acquisition Term Notes, executed by Borrower, payable to the order of
each Lender who has a Commitment-Acquisition Term Loan, respectively in the principal amount of
such Lender’s Commitment-Acquisition Term Loan. From time to time a new Acquisition Term Note may
be issued to another Lender hereunder as such Person becomes a party to this Agreement. From time
to time the Agent may require an Acquisition Term Note to be exchanged for a newly issued
Acquisition Term Note to accurately reflect the
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amount of each Lender’s Commitment-Acquisition Term Loan hereunder. Upon the request of Agent,
Borrower shall execute and deliver to Agent such new Acquisition Term Notes as requested by Agent.
Section 4.3. Interest. The unpaid principal amount of Acquisition Advances (and, therefore,
the Acquisition Term Notes) shall bear interest prior to maturity at a varying rate per annum equal
from day to day to the lesser of (a) the Maximum Rate or (b) the Applicable Rate, and each change
in the rate of interest charged on the Acquisition Term Loan shall become effective, without notice
to Borrower on the effective date of each change in the Applicable Rate or the Maximum Rate, as the
case may be; provided, however, if at any time the rate of interest specified in clause (b)
preceding shall exceed the Maximum Rate, thereby causing the interest on the Acquisition Term Loan
to be limited to the Maximum
Rate, then any subsequent reduction in the Applicable Rate shall not reduce the rate of
interest on the Acquisition Term Loan below the Maximum Rate until the aggregate amount of interest
accrued on the Acquisition Term Loan equals the aggregate amount of interest which would have
accrued on the Acquisition Term Loan if the interest rate specified in clause (b) preceding had at
all times been in effect. Notwithstanding the foregoing, if any Event of Default has occurred and
is continuing, the outstanding principal of the Acquisition Term Loan shall, upon the determination
of the Majority Lenders, bear interest at the Default Rate.
Section 4.4. Repayment of Principal and Interest. (a) Accrued and unpaid interest on the
Acquisition Term Loan (and, therefore, the Acquisition Term Notes) shall be due and payable as
follows:
(i) in the case of each Acquisition Advance which is a Prime Rate Loan, on each March
31, June 30, September 30 and December 31, commencing September 30, 2007;
(ii) in the case of each Acquisition Advance which is a LIBOR Loan, on the last day of
each Interest Period therefor;
(iii) upon the payment or prepayment (mandatory or optional) of any Acquisition
Advance or the Conversion of any Acquisition Advance (but only on the principal amount so
paid, prepaid, or Converted); and
(iv) for all Acquisition Advances, on the Maturity Date Acquisition Term Loan.
(b) Notwithstanding the foregoing, interest payable at the Default Rate shall be payable from
time to time on demand.
(c) The principal of the Acquisition Term Loan (and, therefore, the Acquisition Term Notes)
shall be due and payable by Borrower as follows:
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(i) seven (7) quarterly installments each in the principal amount equal to two and
one-half percent (2.50%) of the outstanding principal balance of the Acquisition Term Loan
on the Termination Date Acquisition Advances, shall be due and payable on each March 31,
June 30, September 30 and December 31, commencing December 31, 2008 until and including
June 30, 2010;
(ii) quarterly installments each in the principal amount equal to two and one-half
percent (2.50%) of the amount of any Combined Commitments-Acquisition Term Loan Increase
which occurs at any time after the Termination Date Acquisition Advances shall be due and
payable on each March 31, June 30, September 30 and December 31, commencing with the first
such date occurring after the calendar quarter in
which such Combined Commitments-Acquisition Term Loan Increase occurs; and
(iii) a final installment in the amount of all outstanding principal shall be due and
payable on the Maturity Date Acquisition Term Loan.
Section 4.5.Mandatory Prepayment. (a) If the Real Estate Term Loan has been paid in full, the
Acquisition Term Loan shall be subject to mandatory prepayment if at the end of any fiscal year of
Borrower, commencing with the fiscal year ending December 31, 2007, (i) the Total Leverage Ratio is
less than 2.00 to 1.00, in an amount equal to twenty-five percent (25%) of Excess Cash Flow for
such fiscal year, and (ii) the Total Leverage Ratio is equal to or greater than 2.00 to 1.00, in an
amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal year. Such mandatory
prepayments shall be due and payable on that day which is one hundred twenty (120) days following
the last day of each fiscal year of Borrower and shall be applied to the remaining principal
payments due on the Acquisition Term Loan in inverse order of their maturities.
(b) If the Real Estate Term Loan has been paid in full, the Acquisition Term Loan shall be
subject to mandatory prepayment in an amount equal to one hundred percent (100%) of the insurance,
condemnation or other proceeds received in connection with any casualty event, condemnation or
other loss suffered by Borrower or any Subsidiary (“Event Proceeds”); provided, however, that (i)
if such Event Proceeds are less than or equal to $500,000.00, no mandatory prepayment shall be
required, such Event Proceeds shall be paid to Borrower, and Borrower shall use such Event Proceeds
to repair or restore the assets which gave rise to such Event Proceeds, and (ii) if such Event
Proceeds are greater than $500,000.00, Agent may determine that no mandatory prepayment is to be
required and that such Event Proceeds are to be paid to Borrower, and, in such event, Borrower
shall use such Event Proceeds to repair or restore the assets which gave rise to such Event
Proceeds. Such mandatory prepayments shall be due on that date which is ten (10) days following the
date on which Borrower or Agent receives any such Event Proceeds and shall be applied to the
remaining principal payments due on the Acquisition Term Loan in inverse order of their maturities.
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(c) If the Real Estate Term Loan has been paid in full, the Acquisition Term Loan shall be
subject to mandatory prepayment in an amount equal to one hundred percent (100%) of the net
proceeds of any sale or other disposition of assets of Borrower or any Subsidiary (“Net Proceeds”);
provided, however, that (i) if the aggregate amount of the Net Proceeds of all such sales or
dispositions during any calendar year is less than $250,000.00, no mandatory prepayment shall be
required, (ii) if (A) the aggregate amount of the Net Proceeds of all such sales or dispositions
during any calendar year is equal to or greater than $250,000.00 but less than $1,000,000.00, and
(B) Borrower acquires replacement assets having a cost at least equal to such Net Proceeds in which
Agent has a first priority Lien, no mandatory prepayment shall be required, and
(iii) if the aggregate amount of the Net Proceeds of all such sales or dispositions during any
calendar year is equal to or greater than $1,000,000.00, Agent may determine that no mandatory
prepayment is to be required if Borrower acquires replacement assets having a cost at least equal
to such Net Proceeds in which Agent has a first priority Lien. Any such mandatory prepayments shall
be due on that date which is ten (10) days following the date on which Borrower or Agent receives
any such Net Proceeds which results in the obligation to make a mandatory prepayment, and shall be
applied to the remaining principal payments due on the Acquisition Term Loan in inverse order of
their maturities. Notwithstanding any provision of this Agreement or any Loan Document to the
contrary, Borrower or any Subsidiary may sell or convey its assets, other than the assets described
in the Pledge Agreements, free and clear of the Liens created by the Loan Documents, provided that
any such sale or conveyance is subject to the provisions of, and in accordance with, this Section
4.5(c).
(d) If the Real Estate Term Loan has been paid in full, the Acquisition Term Loan shall be
subject to mandatory prepayment in an amount equal to one hundred percent (100%) of the net
proceeds from any issuance of debt securities, excluding any (i) proceeds from any issuance by
Borrower of equity securities and (ii) cash proceeds used in conjunction with any acquisition;
provided however, that the Senior Subordinated Note shall not constitute debt securities for
purposes of this Section 4.5(d). Such mandatory prepayments shall be due on the date on which such
debt securities are issued and shall be applied to the remaining principal payments due on the
Acquisition Term Loan in inverse order of their maturities.
Section 4.6. Requests for Acquisition Advances. Borrower shall request each Acquisition
Advance by delivering to Agent an Acquisition Advance Request Form (a) stating the amount of the
Acquisition Advance, (b) stating the date on which Borrower desires that the Acquisition Advance be
funded, (c) stating the Type of the Acquisition Advance, and (d) if such Acquisition Advance is a
LIBOR Loan, designating the Interest Period thereof. Each Acquisition Advance Request Form shall be
accompanied by documentation satisfactory to Agent related such Acquisition Advance. Each
Acquisition Advance Request Form shall be delivered to Agent at least (i) in the case of each
Acquisition Advance which is to be a Prime Rate Loan, (A) not later than 11:00 a.m. on any Business
Day, in which case such Acquisition Advance shall be funded on such Business Day (if all other
conditions contained in this Agreement are satisfied) or (B) after 11:00 a.m. on any Business Day,
in which case, such
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Acquisition Advance shall be funded on the next succeeding Business Day (if all other conditions
contained in this Agreement are satisfied), and (ii) in the case of each Acquisition Advance which
is to be a LIBOR Loan, at least three (3) Business Days before the date on which Borrower desires
that the Acquisition Advance be funded; provided that (x) no Acquisition Advance which is a LIBOR
Loan may be in an amount which is less than $1,000,000.00, and (y) at any time there can be no more
than five (5) Interest Periods in effect for the Acquisition
Advances. Borrower at any time may redesignate the amounts of, and Convert and Continue the
Acquisition Advances, subject to the terms and provisions of this Agreement, including Sections
5.7, 5.8 and 5.9 hereof.
Section 4.7. Use of Proceeds. The proceeds of the Acquisition Term Loan shall be used for
general corporate purposes, including to finance Acquisitions permitted by this Agreement and for
capital expenditures.
Section 4.8. Increase of the Combined Commitments-Acquisition Term Loan. (a) Borrower may
effectuate up to two (2) separate increases in the aggregate Combined Commitments-Acquisition Term
Loan (each such increase being a “Combined Commitments-Acquisition Term Loan Increase”), by
designating either one or more of the existing Lenders (each of which, in its sole discretion, may
determine whether and to what degree to participate in such Combined Commitments-Acquisition Term
Loan Increase) or one or more other banks or other financial institutions (reasonably acceptable to
Agent) that at the time agree, in the case of any such bank or financial institution that is an
existing Lender to increase its Commitment-Acquisition Term Loan as such Lender shall so select (an
“Increasing Lender”) and, in the case of any other such bank or financial institution (an
“Additional Lender”), to become a party to this Agreement; provided, however, that (i) each
Combined Commitments-Acquisition Term Loan Increase shall be in an amount at least equal to
$5,000,000.00, (ii) the aggregate amount of all Combined Commitments-Acquisition Term Loan
Increases and Combined Commitments-Revolving Advances Increases (as defined in Section 2.17) shall
not exceed $25,000,000.00, and (iii) all Commitments-Acquisition Term Loan and Acquisition Advances
provided pursuant to a Combined Commitments-Acquisition Term Loan Increase shall be available on
the same terms as those applicable to the existing Commitments-Acquisition Term Loan and
Acquisition Advances. The sum of the increases in the Commitments-Acquisition Term Loan of the
Additional Lenders upon giving effect to a Combined Commitments-Acquisition Term Loan Increase
shall not, in the aggregate, exceed the amount of such Combined Commitments-Acquisition Term Loan
Increase minus the increase in the Combined Commitments-Acquisition Advances of the Increasing
Lenders. Borrower shall provide prompt notice of any proposed Combined Commitments-Acquisition Term
Loan Increase pursuant to clause (a) above to Agent. This Section 4.8 shall not be construed to
create any obligation on Agent or any Lender to advance or to commit to advance any credit to
Borrower or to arrange for any other Person to advance or to commit to advance any credit to
Borrower.
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(b) A Combined Commitments-Acquisition Term Loan Increase shall become effective upon the
receipt by Agent of (i) a fee on the amount of the Combined Commitments-Acquisition Term Loan
Increase based upon prevailing market rates at the time of such Combined Commitments-Acquisition
Term Loan Increase, (ii) an agreement in form and substance reasonably satisfactory to Agent signed
by Borrower, each Increasing Lender and each Additional Lender, as applicable, setting forth the
Commitments-Acquisition Term Loan of each such Lender, and in the case of an Additional Lender,
setting forth the agreement of such Additional Lender to become a party to this Agreement and to be
bound by all the terms and provisions hereof binding upon each Lender, (iii) such evidence of
appropriate authorization on the part of Borrower with respect to such Combined
Commitments-Acquisition Term Loan Increase as Agent may reasonably request, and (iv) receipt by
Agent of a certificate of an Authorized Representative of Borrower stating that, both before and
after giving effect to such Combined Commitments-Acquisition Term Loan Increase, no Event of
Default or Unmatured Event of Default has occurred and is continuing, and that all representations
and warranties made by Borrower in this Agreement are true and correct in all material respects,
unless such representation or warranty relates to an earlier date which remains true and correct as
of such earlier date.
Section 4.9. Unused Commitment Fee; Reduction or Termination of Combined
Commitments-Acquisition Term Loan. Borrower agrees to pay to Agent for the Pro Rata-Acquisition
Advances benefit of the Lenders a commitment fee on the average daily unused portion of the
Combined Commitments-Acquisition Term Loan, from and including the Closing Date to, but excluding
the Termination Date Acquisition Advances, at the rate set forth below based on a 360 day year and
the actual number of days elapsed, payable quarterly, in arrears, and on the Termination Date
Acquisition Advances.
Total Leverage Ratio |
Commitment Fee | |||
Less than 1.00 to 1.00 |
0.200 | % | ||
Equal to or greater than 1.00 to 1.00 but less than 1.50 to 1.00 |
0.250 | % | ||
Equal to or greater than 1.50 to 1.00 but less than 2.00 to 1.00 |
0.250 | % | ||
Equal to or greater than 2.00 to 1.00 but less than 2.50 to 1.00 |
0.300 | % | ||
Equal to or greater than 2.50 to 1.00 |
0.375 | % | ||
For the purpose of calculating the commitment fee hereunder, the Combined Commitments-Acquisition
Term Loan shall be deemed utilized by the amount of all outstanding Acquisition Advances. Borrower
shall have the right at any time to terminate in whole or from time to time to irrevocably reduce
in part the Combined Commitments-Acquisition Term Loan upon at least three (3) Business
Days prior notice to Agent specifying the effective date thereof, whether a termination or
reduction is being made, and the amount of any partial reduction;
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provided, however, the Combined Commitments-Acquisition Term Loan shall never be reduced below an
amount equal to the outstanding Acquisition Advances. Any such reduction in the Combined
Commitments-Acquisition Term Loan shall take effect Pro Rata. The Combined Commitments-Acquisition
Term Loan may not be reinstated after they have been terminated or reduced.
ARTICLE V.
Payments; Additional Matters with Respect to
LIBOR Loans; Yield Protection Provisions
LIBOR Loans; Yield Protection Provisions
Section 5.1. Method of Payment. All payments of principal, interest, and other amounts to be
made by Borrower under this Agreement, the Notes or any other Loan Documents shall be made to Agent
at its designated office specified herein for the account of each Lender’s office specified herein
in immediately available funds, without setoff, deduction, or counterclaim in immediately available
funds, not later than 11:00 a.m. Houston, Texas time on the date that such payment shall become due
(and each such payment made after such time on such due date to be deemed to have been made on the
next succeeding Business Day). Each payment received by Agent under this Agreement or any other
Loan Document for the account of a Lender shall be paid promptly to such Lender, in immediately
available funds, at such Lender’s office designated herein; provided, however, in the event any
Lender shall have failed to make a Revolving Advance as contemplated by Section 2.5 or an
Acquisition Advance as contemplated by Section 4.6 hereof (a “Defaulting Lender”) and Agent or
another Lender or Lenders shall have made such Revolving Advance or Acquisition Advance, payment
received by Agent for the account of such Defaulting Lender shall not be distributed to such
Defaulting Lender or Lenders until such Revolving Advance or Acquisition Advance, or Revolving
Advances or Acquisition Advances shall have been repaid in full to Agent or Lender or Lenders who
funded such Revolving Advance or Acquisition Advance, or Revolving Advances or Acquisition
Advances. Whenever any payment under this Agreement, any Note or any other Loan Document shall be
stated to be due on a day that is not a Business Day, such payment may be made on the next Business
Day, and interest shall continue to accrue during such extension.
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Section 5.2. Sharing of Payments, etc./Non-Receipt of Funds by Agent.
(a) If any Lender shall obtain any payment (whether voluntary, involuntary, or otherwise) on
account of the Revolving Advances, the Real Estate Term Loan or the Acquisition Advances
(including, without limitation, any set-off), which is in excess of its Pro Rata Share of payments
on the Revolving Advances, the Real Estate Term Loan or the Acquisition Advances, as applicable,
obtained by all Lenders, such Lender shall purchase from the other Lenders such participation as
shall be necessary to cause such purchasing Lender to share the excess payment Pro Rata with each
of them; provided that, if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the
extent of recovery. Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this section may, to the fullest extent permitted by law, exercise all of its
rights of payment (including the right of offset) with respect to such participation as fully as if
such Lender were the direct creditor of Borrower in the amount of such participation.
(b) Unless Agent shall have been notified by a Lender or Borrower (the “Payor”) prior to the
date on which such Lender is to make payment to Agent of the proceeds of a Revolving Advance or an
Acquisition Advance to be made by it hereunder or Borrower is to make a payment to Agent for the
account of one or more of the Lenders, as the case may be (a “Required Payment”), which notice
shall be effective upon receipt, that the Payor does not intend to make the Required Payment to
Agent, Agent may assume that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available to the intended
recipient on such date and, if the Payor has not in fact made the Required Payment to Agent, the
recipient of such payment shall, on demand, pay to Agent the amount made available to it together
with interest thereon in respect of the period commencing on the date such amount was made
available by Agent until the date Agent recovers such amount at the rate applicable to such portion
of the applicable Revolving Advance, Real Estate Term Loan or Acquisition Advance.
Section 5.3. Voluntary Prepayment. Borrower may prepay the Notes in whole at any time or from
time to time in part without premium or penalty but with accrued interest to the date of prepayment
on the amount so prepaid; provided, however, that any prepayments of principal of the Real Estate
Term Notes or the Acquisition Term Notes shall be applied first to the remaining principal payments
due on the Real Estate Term Notes in inverse order of their maturities and then to the remaining
principal payments due on the Acquisition Term Notes in inverse order of their maturities.
Section 5.4. Computation of Interest. Interest on the indebtedness evidenced by the Notes
shall be computed on the basis of a year of (a) 360 days and the actual number of days elapsed
(including the first day but excluding the
last day) for all LIBOR Loans unless such calculation would result in a usurious rate, in
which case interest shall be calculated on the
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basis of a year of 365 or 366 days, as the case may be and (b) 365 or 366 days, as the case may be,
for all Prime Rate Loans.
Section 5.5. Capital Adequacy. If after the date hereof, any Lender shall have determined
that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender (or its parent) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or
its parent’s) capital as a consequence of its obligations hereunder or the transactions
contemplated hereby to a level below that which such Lender (or its parent) could have achieved but
for such adoption, change or compliance (taking into consideration such Lender’s policies with
respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to
time, within thirty (30) days after written demand by such Lender, Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender (or its parent) for such
reduction. A certificate of such Lender accompanying such written demand claiming compensation
under this Section and setting forth in reasonable detail the additional amount or amounts to be
paid to it hereunder and an explanation of the event, circumstance or change giving rise to such
demand shall, absent manifest error, be conclusive, provided that the determination thereof is made
on a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable
averaging and attribution methods.
Section 5.6. Additional Costs in Respect of Letters of Credit. If as a result of any
Regulatory Change there shall be imposed, modified, or deemed applicable any tax, reserve, special
deposit, or similar requirement against or with respect to or measured by reference to Letters of
Credit issued or to be issued hereunder or Issuing Bank’s commitment to issue Letters of Credit
hereunder, and the result shall be to increase the cost to Issuing Bank of issuing or maintaining
any Letter of Credit or its commitment to issue Letters of Credit hereunder or reduce any amount
receivable by Issuing Bank hereunder in respect of any Letter of Credit (which increase in cost, or
reduction in amount receivable, shall be the result of Issuing Bank’s reasonable allocation of the
aggregate of such increases or reductions resulting from such event), then, within thirty (30) days
after written demand by Issuing Bank, Borrower agrees to pay to Issuing Bank from time to time as
specified by Issuing Bank, such additional amounts as shall be sufficient to compensate Issuing
Bank for such increased costs or reductions in amount. A statement in reasonable detail describing
such increased costs or reductions in amount incurred by Issuing
Bank, submitted by Issuing Bank to Borrower with such written demand, shall, absent manifest
error, be conclusive as to the amount thereof, provided that the determination thereof is made on a
reasonable basis.
Section 5.7. Conversions and Continuations. Borrower shall have the right from time to time to
Convert any Loan from one Type of Loan into another Type of Loan or to Continue
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any LIBOR Loan as a LIBOR Loan by giving Agent written notice at least one (1) Business Day before
Conversion into a Prime Rate Loan and at least three (3) Business Days before Conversion into or
Continuation of a LIBOR Loan, specifying (a) the Conversion or Continuation date, (b) in the case
of Conversions, the Type of Loan to be Converted into, and (c) in the case of a Continuation of or
Conversion into a LIBOR Loan the duration of the Interest Period applicable thereto; provided that
(w) no Revolving Advance, Real Estate Term Loan Portion or Acquisition Advance, as applicable,
which is a LIBOR Loan may be in an amount which is less than $500,000.00, (x) at any time there can
be no more than five (5) Interest Periods in effect for the Revolving Advances, the Real Estate
Term Loan Portions or the Acquisition Advances, respectively, (y) LIBOR Loans may only be Converted
on the last day of the Interest Period therefor, and (z) except for Conversions to Prime Rate
Loans, Lender shall have no obligation to make any Conversions while an Event of Default or a
Bonding Default has occurred and is continuing. In the case of Loans the amount(s) of which are
being redesignated, in addition to the foregoing notices, Borrower shall give at least three (3)
Business Days written notice to Agent before any such redesignation of the new amounts of any such
Loans; provided that no Loan which is a LIBOR Loan may be redesignated except at the end of the
Interest Period applicable thereto. All notices under this Section shall be irrevocable and shall
be given not later than 11:00 A.M. Houston, Texas time on the day which is not less than the number
of Business Days specified above for such notice. If Borrower shall fail to give Agent the notice
specified above for Continuation or Conversion of any LIBOR Loan prior to the end of the Interest
Period with respect thereto, such LIBOR Loan shall automatically be Converted into a Prime Rate
Loan on the last day of such Interest Period.
Section 5.8. Illegality, Impossibility, Regulatory Change and Compensation. In the event that
(a) it becomes unlawful for any Lender to honor its obligation to make LIBOR Loans hereunder or to
maintain LIBOR Loans hereunder, (b) Agent determines that (i) quotations of interest rates for the
relevant deposits referred to in the definition of “LIBOR Rate” are not being provided in the
relative amounts or for the relative maturities for determining the interest rates borne by the
LIBOR Loans as provided in this Agreement or (ii) such quotations do not accurately reflect any
Lender’s costs in connection therewith, or (c) a Regulatory Change (including the imposition of a
Reserve Requirement) occurs which changes any Lender’s basis of taxation with respect to LIBOR
Loans or imposes reserve, capital or other requirements with respect
thereto, then (x) Agent or such Lender shall notify Borrower in writing of any such event,
which notice shall be accompanied by an explanation of the event, (y) Borrower shall promptly pay
to such Lender such amounts as such Lender may determine (which determination shall be conclusive
provided such determination is made on a reasonable basis without manifest error) to be necessary
to compensate Issuing Bank for any increased costs incurred by such Lender or decreases in amounts
receivable by such Lender which such Lender determines are attributable to any event described in
clauses (a), (b) or (c) above, and (z) the obligation of such Lender to make or Continue LIBOR
Loans or to Convert Prime Rate Loans to LIBOR Loans shall terminate, and (i) all future Loans shall
be Prime Rate Loans and
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(ii) all outstanding Loans which are LIBOR Loans shall be Converted to Prime Rate Loans on the last
day of the current Interest Period therefor.
Section 5.9. Compensation for Prepayment or Failure to Borrow. Upon (a) any prepayment or
Conversion of any LIBOR Loan on a day other than the last day of an Interest Period therefor or (b)
the failure by Borrower to borrow as provided in an Revolving Advance Request Form or an
Acquisition Advance Request Form delivered to Agent, Convert or prepay a LIBOR Loan on any date
required hereby, Borrower shall pay to Agent, following written demand accompanied by an
explanation of the event giving rise to Agent’s demand, a fee in an amount reasonably determined by
Agent equal to funding losses actually incurred by Agent or Lenders as a result of such event, but
not more than one percent (1.0%) of the principal amount of the Revolving Advance, the Real Estate
Term Loan Portion or the Acquisition Advance, which is not borrowed or which is prepaid, as
applicable, times a fraction, the numerator of which is the number of days remaining in the
Interest Period and the denominator of which is 365.
ARTICLE VI.
Collateral
Section 6.1. Collateral. To secure full and complete payment and performance of the
Obligations, Borrower shall execute and deliver or cause to be executed and delivered the documents
described below covering the property and collateral described therein and in this Section 6.1
(which, together with any other property and collateral which may now or hereafter secure the
Obligations or any part thereof, is sometimes herein called the “Collateral”):
(a) Each of Construction, King Xxxxxx, Xxxxxxx and OAS, shall grant to Agent a first
priority security interest in all of its accounts, accounts receivable, inventory,
equipment, machinery, fixtures, chattel paper, documents, instruments, deposit accounts,
investment property, letter of credit rights, general intangibles and all its other
personal
property, whether now owned or hereafter acquired, and all products and proceeds
thereof, pursuant to a Security Agreement-Subsidiary-General.
(b) Borrower shall grant to Agent a first priority security interest in all its (i)
stock of its directly owned Subsidiaries which are corporations, pursuant to the Pledge
Agreement-Borrower-Stock, and (ii) ownership interests of its other directly owned
Subsidiaries, pursuant to the Pledge Agreement-Borrower-Ownership Interests.
(c) Each of Construction, KFMSGP, KFMSLP, OCGP and OCLP, shall grant to Agent a first
priority security interest in all its ownership interests of its directly
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owned Subsidiaries (which are not corporations), pursuant to a Pledge
Agreement-Subsidiary-Ownership Interests.
(d) Construction shall grant to Agent a first priority security interest in all its
stock of its directly owned Subsidiaries which are corporations, pursuant to a Pledge
Agreement-Subsidiary-Stock.
(e) Construction shall grant to Agent a first and second priority lien on the Market
Street Property, pursuant to the Deeds of Trust-Market Street.
(f) King Xxxxxx shall xxxxx to Agent a first and second priority lien on the Port
Lavaca Property, pursuant to the Deeds of Trust-Port Lavaca.
(g) Xxxxxxx shall grant to Agent a first priority lien on the Florida Property,
pursuant to the Mortgage-Florida.
(h) Borrower shall execute and cause to be executed such further documents and
instruments as Agent, in its sole discretion, deems necessary or desirable to evidence and
perfect its liens and security interests in the Collateral. Borrower authorizes, directs
and permits Agent to file Uniform Commercial Code financing statements with respect to the
Collateral in such jurisdictions as Agent may desire.
Section 6.2. Setoff. Upon the occurrence and during the continuance of an Event of Default,
Agent, Issuing Bank and each Lender shall have the right to set off and apply against the
Obligations in such a manner as such Person may determine, at any time and without notice to
Borrower, any and all deposits (general or special, time or demand, provisional or final) or other
sums at any time credited by or owing from such Person to Borrower whether or not the Obligations
are then due. As further security for the Obligations, Borrower hereby grants to Agent, Issuing
Bank and each Lender a security interest in all money, instruments, and other property of Borrower
now or hereafter held by such
Person. In addition to such Person’s right of setoff and as further security for the
Obligations, Borrower hereby grants to Agent, Issuing Bank and each Lender a security interest in
all deposits (general or special, time or demand, provisional or final) and other accounts of
Borrower now or hereafter on deposit with or held by such Person and all other sums at any time
credited by or owing from such Person to Borrower. The rights and remedies of Agent, Issuing Bank
and each Lender hereunder are in addition to other rights and remedies (including, without
limitation, to the rights of setoff) which such Person may have.
Section 6.3. Guaranty Agreements. Each Guarantor shall unconditionally and irrevocably
guarantee payment and performance of the Obligations by execution and delivery of a Guaranty
Agreement.
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ARTICLE VII.
Conditions Precedent
Section 7.1. Initial Extension of Credit. The effectiveness of this Agreement is subject to
the condition precedent that prior thereto Agent shall have received all of the documents set forth
below in form and substance satisfactory to Agent.
(a) Certificate — Borrower. A certificate of the Secretary or another officer of
Borrower acceptable to Agent certifying (i) resolutions of the board of directors of
Borrower which authorize the execution, delivery and performance by Borrower of this
Agreement and the other Loan Documents to which Borrower is or is to be a party, and (ii)
the names of the officers of Borrower authorized to sign this Agreement and each of the
other Loan Documents to which Borrower is or is to be a party together with specimen
signatures of such officers.
(b) Organizational Documents — Borrower. The certificate of incorporation and the
bylaws of Borrower certified by the Secretary or another officer of Borrower acceptable to
Agent.
(c) Governmental Certificates — Borrower. Certificates issued by the appropriate
government officials of the state of incorporation of Borrower as to the existence and good
standing of Borrower.
(d) Certificate — OCGP — As General Partner of Construction. A certificate of a
manager or another officer of OCGP acceptable to Agent certifying (i) resolutions of the
members of OCGP, as general partner of Construction, which authorize the execution,
delivery and performance by Construction of each of the Loan Documents to which
Construction is or is to be a party and (ii) the names of the managers or officers of OCGP
authorized to sign each of the Loan Documents to which Construction is or is to be a party
together with specimen signatures of such Persons.
(e) Organizational Documents — Construction. The Limited Partnership Agreement of
Construction and the Certificate of Limited Partnership of Construction certified by a
manager or another officer of OCGP, as general partner of Construction, acceptable to
Agent.
(f) Governmental Certificates — Construction. A certificate issued by the appropriate
government official of the state of organization of Construction as to the existence of
Construction.
(g) Certificate — KFMSGP — As General Partner of King Xxxxxx. A certificate of a
manager or another officer of KFMSGP acceptable to Agent certifying (i)
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resolutions of the members of KFMSGP, as general partner of King Xxxxxx, which authorize the
execution, delivery and performance by King Xxxxxx of each of the Loan Documents to which King
Xxxxxx is or is to be a party and (ii) the names of the managers or officers of KFMSGP authorized
to sign each of the Loan Documents to which King Xxxxxx is or is to be a party together with
specimen signatures of such Persons.
(h) Organizational Documents — King Xxxxxx. The Limited Partnership Agreement of King Xxxxxx
and the Certificate of Limited Partnership of King Xxxxxx certified by a manager or another officer
of KFMSGP, as general partner of King Xxxxxx, acceptable to Agent.
(i) Governmental Certificates — King Xxxxxx. A certificate issued by the appropriate
government official of the state of organization of King Xxxxxx as to the existence of King Xxxxxx.
(j) Certificate — Xxxxxxx and OAS. A certificate of the Secretary or another officer of each
of Xxxxxxx and OAS acceptable to Agent certifying (i) resolutions of the board of directors of each
of Xxxxxxx and OAS which authorize the execution, delivery and performance by each of Xxxxxxx and
OAS of each of the Loan Documents to which each of Xxxxxxx and OAS is or is to be a party and (ii)
the names of the officers of each of Xxxxxxx and OAS authorized to sign each of the Loan Documents
to which each of Xxxxxxx and OAS is or is to be party together with specimen signatures of such
officers.
(k) Organizational Documents — Xxxxxxx and OAS. The articles of incorporation and the bylaws
of each of Xxxxxxx and OAS certified by the Secretary or another officer of each of Xxxxxxx and OAS
acceptable to Agent.
(l) Governmental Certificates — Xxxxxxx and OAS. Certificates issued by the appropriate
government officials of the state of incorporation of each of Xxxxxxx and OAS as to the existence
and good standing of each of Xxxxxxx and OAS.
(m) Certificate — KFMSGP, KFMSLP, OCGP and OCLP. A certificate of a manager or another officer
of each of KFMSGP, KFMSLP, OCGP and OCLP acceptable to Agent certifying (i) resolutions of the
members of each of KFMSGP, KFMSLP, OCGP and OCLP which authorize the execution, delivery and
performance by each of KFMSGP, KFMSLP, OCGP and OCLP of each of the Loan Documents to which each of
KFMSGP, KFMSLP, OCGP and OCLP is or is to be a party and (ii) the names of the managers or other
officers of each of KFMSGP, KFMSLP, OCGP and OCLP authorized to sign each of the Loan Documents to
which each of KFMSGP, KFMSLP, OCGP and OCLP is or is to be a party together with specimen
signatures of such Persons.
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(n) Organizational Documents — KFMSGP, KFMSLP, OCGP and OCLP. The articles of organization and
the regulations of each of KFMSGP, KFMSLP, OCGP and OCLP certified by a manager or another officer
of each of KFMSGP, KFMSLP, OCGP and OCLP acceptable to Agent.
(o) Governmental Certificates — KFMSGP, KFMSLP, OCGP and OCLP. Certificates issued by the
appropriate government officials of the state of organization of each of KFMSGP, KFMSLP, OCGP and
OCLP as to the existence and good standing of each of KFMSGP, KFMSLP, OCGP and OCLP.
(p) Notes. (i) The Revolving Credit Notes and the Acquisition Term Notes executed by Borrower
payable to the order of the respective Lenders, and (ii) the Modifications to Real Estate Term
Notes executed by Borrower in favor of the respective Lenders.
(q) Security Agreement-Subsidiary-General. A Security Agreement-Subsidiary-General executed
by each of Construction, King Xxxxxx, Xxxxxxx and OAS.
(r) Pledge Agreement-Borrower-Ownership Interests. The Pledge Agreement-Borrower-Ownership
Interests executed by Borrower.
(s) Pledge Agreement-Borrower-Stock. The Pledge Agreement-Borrower-Stock executed by Borrower.
(t) Pledge Agreement-Subsidiary-Ownership Interests. A Pledge Agreement-Subsidiary-Ownership
Interests executed by each of Construction, KFMSGP, KFMSLP, OCGP and OCLP.
(u) Pledge Agreement-Subsidiary-Stock. A Pledge Agreement-Subsidiary-Stock executed by
Construction.
(v) Financing Statements. Uniform Commercial Code financing statements showing Borrower,
Construction, KFMSGP, KFMSLP, King Fisher, Misener, OAS, OCGP and OCLP as debtor.
(w) Guaranty Agreement. A Guaranty Agreement executed by each Guarantor.
(x) Modification to Deed of Trust-Market Street-First Lien. The Modification to Deed of
Trust-Market Street-First Lien executed by Construction.
(y) Deed of Trust-Market Street-Second Lien. The Deed of Trust-Market Street-Second Lien
executed by Construction.
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(z) Modification to Deed of Trust-Port Lavaca-First Lien. The Modification to Deed of
Trust-Port Lavaca-First Lien executed by King Xxxxxx.
(aa) Deed of Trust-Port Lavaca-Second Lien. The Deed of Trust-Port Lavaca-Second Lien
executed by King Xxxxxx.
(ab) Mortgage-Florida. The Mortgage-Florida executed by Xxxxxxx.
(ac) Mortgagee Title Insurance Policy. A paid mortgagee policy of title insurance in
the amount of $5,260,000.00 insuring that the Mortgage-Florida creates in favor of Agent a
first priority lien on the Florida Property. The mortgagee policy of title insurance shall
have been issued at Borrower’s expense by a title insurance company acceptable to Agent,
shall show a state of title and exceptions thereto, if any, reasonably acceptable to Agent
and shall contain such endorsements as may be available and required by Agent.
(ad) Title Reports. Current title reports on the Market Street Property and the Port
Lavaca Property.
(ae) Insurance Policies. Copies of all insurance policies required by Section 9.5 or
certificates therefor, together with loss payable endorsements in favor of Agent with
respect to all insurance policies covering Collateral.
(af) UCC Search. A Uniform Commercial Code search showing all financing statements and
other documents or instruments on file against (i) Borrower and Hunter Acquisition Corp.
with the Delaware Secretary of State, (ii) Borrower, Construction, KFMSGP, KFMSLP, King
Fisher, Misener, OAS, OCGP and OCLP with the Texas Secretary of State, (iii) Orion Marine
Group Holdings, Inc., KFMSLP and OCLP with Nevada Secretary of State and (iv) Xxxxxxx with
the Florida Secretary of State.
(ag) Opinion of Counsel. An opinion of Xxxxxx & Xxxxxx, X.X., legal counsel to
Borrower, Construction, KFMSGP, KFMSLP, King Fisher, Misener, OAS, OCGP and OCLP.
(ah) Attorneys’ Fees and Expenses. Evidence that the costs and expenses (including
reasonable attorneys’ fees) referred to in Section 14.1, to the extent incurred, have been
paid in full by Borrower.
(ai) Additional Documentation. Such additional approvals, opinions or documents as
Agent may reasonably request.
Section 7.2. All Extensions of Credit. The obligation of Lenders to make any Revolving
Advance or any Acquisition Advance, as applicable, and Issuing Bank to issue any
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Letter of Credit (including the initial Revolving Advance, the initial Acquisition Advance and the
initial Letter of Credit) is subject (a) to receipt by Agent or Issuing Bank, as applicable, of the
items required by Sections 2.5, 2.10, 4.1 or 4.6, as applicable, and such additional approvals,
opinions or documents as Agent may reasonably request, (b) all of the representations and
warranties contained in Article VIII hereof and the other Loan Documents being true and correct in
all material respects (unless such representation and warranty is already qualified by a
materiality standard) on and as of the date of such Revolving Advance, Acquisition Advance and/or
Letter of Credit issuance, as applicable, with the same force and effect as if such representations
and warranties had been made on and as of such date, except to the extent (i) previously fulfilled
in accordance with the terms hereof, (ii) applicable to a specific date or otherwise subsequently
inapplicable, or (iii) previously waived or approved in writing by the Majority Lenders with
respect to any particular factual circumstance, (c) no Event of Default or Bonding Default exists
or would result from such Revolving Advance, Acquisition Advance or Letter of Credit and (d) since
the date of the most recent financial statements of Borrower delivered to Agent, there has been no
change to Borrower and its Subsidiaries which has had, or could reasonably be expected to have, a
Material Adverse Effect.
ARTICLE VIII.
Representations and Warranties
To induce Agent, Issuing Bank and Lenders to enter into this Agreement, Borrower represents
and warrants to each such Person that:
Section 8.1. Existence. Borrower and each Subsidiary (a) are duly organized, validly existing,
and in good standing under the laws of their respective jurisdictions of organization, (b) have all
requisite power and authority to own their assets and carry on their business as now being or as
proposed to be conducted and (c) are qualified to do business in all jurisdictions where failure to
so qualify would have a Material Adverse Effect. Borrower has the power and authority to execute,
deliver and perform its obligations under this Agreement and the other Loan Documents to which it
is or may become a party.
Section 8.2. Financial Statements. Borrower has delivered to Agent audited consolidated
financial statements of Borrower and its Subsidiaries as at and for the fiscal year ended December
31, 2006, and unaudited consolidated financial statements of Borrower and its Subsidiaries for the
three (3) month period ended March 31, 2007. Such financial statements are true and correct in all
material respects, have been prepared in accordance with GAAP, and fairly and accurately present,
on a consolidated basis, in all material respects the financial condition of Borrower and its
Subsidiaries as of the respective dates indicated therein and the results of operations for the
respective periods indicated therein. Neither Borrower nor any of its Subsidiaries has any material
contingent liabilities, liabilities for taxes, material
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forward or long-term commitments, or material unrealized or anticipated losses from any unfavorable
commitments not reflected in such financial statements. There has been no Material Adverse Effect
since the effective date of the most recent financial statements referred to in this Section.
Section 8.3. Requisite Action; No Breach. The execution, delivery, and performance by Borrower
of this Agreement and the other Loan Documents to which Borrower is or may become a party have been
duly authorized by all requisite action on the part of Borrower and do not and will not violate or
conflict with the Organizational Documents of Borrower or any law, rule or regulation or any order,
writ, injunction, or decree of any court, governmental authority, or arbitrator, and do not and
will not conflict with, result in a breach of, or constitute a default under, or result in the
imposition of any Lien (except as provided in this Agreement) upon any of the revenues or assets of
Borrower or any Subsidiary pursuant to the provisions of any indenture, mortgage, deed of trust,
security agreement, franchise, permit, license, or other instrument or agreement by which Borrower
or any Subsidiary or any of their respective properties is bound.
Section 8.4. Operation of Business. Borrower, each Guarantor and each Subsidiary possess all
material licenses, permits, franchises, patents, copyrights, trademarks, and trade names, or rights
thereto, to conduct their respective businesses substantially as now conducted and as presently
proposed to be conducted.
Section 8.5. Litigation and Judgments. There is no action, suit, investigation, or proceeding
before or by any court, governmental authority, or arbitrator pending, or to the knowledge of
Borrower, threatened against Borrower, any Guarantor or any Subsidiary, that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect. There are no
outstanding judgments against Borrower, any Guarantor or any Subsidiary.
Section 8.6.Rights in Properties; Liens. Borrower, each Guarantor and each Subsidiary have
good and indefeasible title to or valid leasehold interests in their respective properties and
assets, real and personal, including the properties, assets and leasehold interests reflected in
the financial statements
described in Section 8.2, and none of the properties, assets or leasehold interests of
Borrower, any Guarantor or any Subsidiary is subject to any Lien, except for Permitted Liens.
Section 8.7. Enforceability. This Agreement constitutes, and the other Loan Documents to
which Borrower is party, when delivered, shall constitute the legal, valid, and binding obligations
of Borrower, enforceable against Borrower in accordance with their respective terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, or other laws of general
application relating to the enforcement of creditor’s rights.
Section 8.8. Approvals. No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is or will be necessary for
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the execution, delivery, or performance by Borrower of this Agreement and the other Loan Documents
to which Borrower is or may become a party or the validity or enforceability thereof.
Section 8.9. Debt. Borrower and its Subsidiaries have no Debt except Debt permitted pursuant
to Section 10.1.
Section 8.10. Use of Proceeds; Margin Securities. None of Borrower, any Guarantor or any
Subsidiary is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulations T, U, or X of the Board of Governors of the Federal Reserve System), and no part of the
proceeds of any extension of credit under this Agreement will be used to purchase or carry any such
margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
Section 8.11. ERISA. Borrower, each Guarantor and each Subsidiary have complied in all
material respects with all applicable minimum funding requirements and all other applicable and
material requirements of ERISA, and there are no existing conditions that would give rise to
material liability thereunder. No Reportable Event (as defined in Section 4043 of ERISA) has
occurred within five (5) years prior to the Closing Date in connection with any employee benefit
plan sponsored by Borrower, any Guarantor or any Subsidiary that might reasonably constitute
grounds for the termination of such plan by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a trustee to administer such plan.
Section 8.12. Taxes. Borrower, each Guarantor and each Subsidiary have filed all tax returns
(federal, state, and local) required to be filed, including all income, franchise, employment,
property, and sales taxes, and have paid all of their liabilities for taxes, assessments,
governmental charges, and other levies that are due and payable, unless such taxes, charges or
levies are being
diligently contested in good faith by appropriate proceedings for which adequate reserves have
been established and with respect to which no Lien has been filed of record, and Borrower knows of
no pending investigation of Borrower, any Guarantor or any Subsidiary by any taxing authority or of
any pending but unassessed tax liability of Borrower, any Guarantor or any Subsidiary.
Section 8.13. Disclosure. There is no fact known to Borrower which might reasonably be
expected to have a Material Adverse Effect, that has not been disclosed in writing to Agent.
Section 8.14. Subsidiaries. Borrower has no Subsidiaries other than Construction, KFMSGP,
KFMSLP, King Fisher, Misener, OAS, OCGP, OCLP and X. Xxxxxx. Borrower owns directly or indirectly
one hundred percent (100%) of the outstanding stock or other ownership interests of each such
Subsidiary. Borrower has no assets other than the stock of OAS, the membership interests of OCLP
and the ownership interests of X. Xxxxxx.
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Section 8.15. Compliance with Laws. None of Borrower, any Guarantor or any Subsidiary (a) is
in violation in any material respect of any law, rule, regulation, order, or decree of any court,
governmental authority, or arbitrator or (b) has received written notice of any such material
violation from any Governmental Authority. All inventory of Borrower has been and will hereafter be
produced in compliance in all material respects with all applicable laws, rules, regulations, and
governmental standards, including, without limitation, the minimum wage and overtime provisions of
the Fair Labor Standards Act, as amended (29 U.S.C. §§ 201-219), and the regulations promulgated
thereunder.
Section 8.16. Compliance with Agreements. None of Borrower, any Guarantor or any Subsidiary is
in violation in any material respect of, or in any material default under, any material document,
agreement, contract or instrument to which it is a party or by which it or its properties are
bound.
Section 8.17. Environmental Matters. Except as may be disclosed in the Environmental Reports,
but excluding those items described in the Environmental Reports which have been remediated
pursuant to the Florida Remediation, Borrower, each Guarantor and each Subsidiary, and their
respective properties are in compliance with all applicable Environmental Laws. Except for the
Florida Remediation, there is no pending or threatened investigation or inquiry by any governmental
authority of Borrower, any Guarantor or any Subsidiary, or any of their respective properties
pertaining to any Hazardous Substance. Except in the ordinary course of business and in compliance
with all Environmental Laws and except as may be disclosed in the Environmental Reports, but
excluding those items described in the Environmental Reports which have been remediated pursuant to
the Florida Remediation, there are no Hazardous Substances located on or under any of the
properties of Borrower, any Guarantor or any Subsidiary. Except in the ordinary
course of business and in compliance with all Environmental Laws and except as may be
disclosed in the Environmental Reports, but excluding those items described in the Environmental
Reports which have been remediated pursuant to the Florida Remediation, none of Borrower, any
Guarantor or any Subsidiary has caused or permitted any Hazardous Substance to be disposed of on or
under or released from any of its properties. Borrower, each Guarantor and each Subsidiary have
obtained all permits, licenses, and authorizations which are required under and by all
Environmental Laws, except as may be disclosed in the Environmental Reports. Notwithstanding the
foregoing, (a) the Florida Remediation has been conducted as required by the Environmental
Report-Florida Property, and (b) remediation at the Market Street Property has been completed in
accordance with the requirements of the TCEQ.
Section 8.18. Solvency. Borrower, Guarantors and their Subsidiaries, on an individual and a
consolidated basis, are not insolvent, Borrower’s, Guarantors’ and their Subsidiaries’ assets, on
an individual and a consolidated basis, exceed their liabilities, and Borrower will not be rendered
insolvent by the execution and performance of this Agreement and the Loan Documents.
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Section 8.19. Investment Company Act. None of Borrower, any Guarantor or any Subsidiary is an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 8.20. Labor Disputes. There are no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements related to Borrower, any Guarantor or any Subsidiary which
have had, or would reasonably be expected to have, a Materially Adverse Effect, and, to the best
knowledge of Borrower, there are no such strikes, disputes, slow downs or work stoppages threatened
against Borrower, any Guarantor or any Subsidiary.
ARTICLE IX.
Affirmative Covenants
Borrower covenants and agrees that, as long as the Obligations or any part thereof are
outstanding or any Lender has any Commitment hereunder or Issuing Bank has any obligation to issue
any Letter of Credit hereunder or any Letter of Credit Liabilities exist, Borrower will perform and
observe the covenants set forth below, unless Agent shall otherwise consent in writing.
Section 9.1. Reporting Requirements. Borrower will deliver to Agent, Lenders and Issuing Bank:
(a) Annual Financial Statements — Borrower. As soon as available, and in any event
within one hundred twenty (120) days after the end of each fiscal year of Borrower,
beginning with the fiscal year ending December 31, 2007, (i) a copy of the annual audited
financial statements
of Borrower and its Subsidiaries for such fiscal year containing, on a consolidated
and a consolidating basis, balance sheets, statements of income, statements of
stockholders’ equity and statements of cash flows as at the end of such fiscal year and for
the 12-month period then ended, in each case setting forth in comparative form the figures
for the preceding fiscal year, all in reasonable detail, prepared in accordance with GAAP,
and audited and certified without qualification by independent certified public accountants
of recognized standing reasonably acceptable to Agent and (ii) certificates of such
accountants and of an officer of Borrower acceptable to Agent to the effect that such
Persons have no knowledge that any Event of Default or Unmatured Event of Default has
occurred and is continuing and that, to the best of such Persons’ knowledge, such financial
statements are true and correct in all material respects.
(b) Quarterly Financial Statements — Borrower. As soon as available, and in any event
within forty-five (45) days after the end of each quarter of each fiscal year of Borrower,
a copy of the financial statements of Borrower and its Subsidiaries as of the
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end of such fiscal quarter and for the portion of the fiscal year then ended, containing, on a
consolidated and a consolidating basis, balance sheets, statements of income, statements of
stockholders’ equity and cash flows in each case setting forth in comparative form the figures for
the corresponding period of the preceding fiscal year, all in reasonable detail and accompanied by
a certificate of an officer of Borrower acceptable to Agent to the effect that such officer has no
knowledge that any Event of Default or Unmatured Event of Default has occurred and is continuing,
such financial statements have been prepared in accordance with GAAP, and, to the best of such
officers’ knowledge, such financial statements are true and correct in all material respects.
(c) No Default Certificate. (i) As soon as available, and in any event within forty-five (45)
days after the end of each quarter of each fiscal year of Borrower, a No Default Certificate as of
the last day of such fiscal quarter, and (ii) together with the financial statements delivered
pursuant to Section 9.1(a), a No Default Certificate as of the last day of the fiscal year covered
by such financial statements, in each case executed by an officer of Borrower acceptable to Agent
and containing detailed calculations of the covenants contained in Article XI.
(d) Contract Status Reports. As soon as available, and in any event within forty-five (45)
days after the end of each quarter of each fiscal year of Borrower, a contract status report for
Borrower and its Subsidiaries, certified by an officer of Borrower acceptable to Agent.
(e) Borrowing Base Certificate. As soon as available, and in any event within forty-five (45)
days after the end of each quarter of each fiscal year of Borrower, a Borrowing Base Certificate as
of the last day of such fiscal quarter certified by an officer of each Borrowing Base Party
acceptable to Agent;
provided, however, if at the end of any month the outstanding principal balance of the
Revolving Advances is $1.00 or more, as soon as available, and in any event within thirty (30) days
after the end of such month.
(f) Quarterly Accounts Receivable Reports. As soon as available, and in any event within
forty-five (45) days after the end of each quarter of each fiscal year of Borrower, aged accounts
receivable reports for Borrower as of the last day of such month certified by an officer of
Borrower acceptable to Agent; provided, however, if at the end of any month the outstanding
principal balance of the Revolving Advances is $1.00 or more, as soon as available, and in any
event within thirty (30) days after the end of such month.
(g) Notice of Litigation. Promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department, commission, board, agency or
instrumentality, domestic or foreign, affecting Borrower,
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any Guarantor or any Subsidiary which could reasonably be expected to have a Material
Adverse Effect.
(h) Judgments. Within five (5) days of the rendering thereof, notice of any judgment
against Borrower, any Guarantor or any Subsidiary in an amount which is more than
$50,000.00.
(i) Notice of Default. As soon as possible and in any event within five (5) days after
the occurrence of each Event of Default and Unmatured Event of Default of which Borrower is
aware, a written notice setting forth the details of such Event of Default or Unmatured
Event of Default and the action which Borrower has taken and proposes to take with respect
thereto.
(j) Notice of Material Adverse Effect. As soon as possible, an in any event within
five (5) days after Borrower becomes aware thereof, notice of the occurrence of any event
or the existence of any condition which could reasonably be expected to have a Material
Adverse Effect.
(k) General Information. Promptly, such other information concerning Borrower, any
Guarantor or any Subsidiary as Lender may from time to time reasonably request, all of
which information is subject to the provisions of Section 14.20 of this Agreement.
Section 9.2. Maintenance of Existence; Conduct of Business. Borrower will preserve and
maintain, and will cause each Guarantor and each Subsidiary to preserve and maintain, its corporate
existence and preserve and maintain all of its material leases, privileges, licenses, permits,
franchises, qualifications, intellectual property rights and other rights. Anything in this
Agreement to the contrary notwithstanding, (a) Borrower and each of the Guarantors and
Subsidiaries may change its corporate or other name or address, (b) any of the Subsidiaries
may merge with or into Borrower if Borrower is the survivor of such merger (or dissolve and
liquidate its assets to Borrower), and (c) one or more of the Subsidiaries may merge with and into
one another; provided in the event of any such name change or merger (or such dissolution and
liquidation) that: (i) Borrower shall give Agent thirty (30) days prior written notice thereof and
(ii) Borrower, Guarantors and the Subsidiaries shall execute and deliver, prior to or
simultaneously with any such action, any and all documents and agreements requested by Agent in its
reasonable business judgment to confirm the continuation and preservation of all Liens granted to
Agent hereunder.
Section 9.3. Maintenance of Properties. Borrower will maintain, and will cause each Guarantor
and each Subsidiary to maintain, its assets and properties in good condition and repair, ordinary
wear and tear and damage by casualty excepted.
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Section 9.4. Taxes and Claims. Borrower will pay or discharge, and will cause each Guarantor
and each Subsidiary to pay or discharge, at or before maturity or before becoming delinquent (a)
all taxes, levies, assessments, and governmental charges imposed on it or its income or profits or
any of its property, and (b) all lawful claims for labor, material, and supplies, which, if unpaid
and past due, might become a Lien upon any of its property; provided, however, that none of
Borrower, any Guarantor or any Subsidiary shall be required to pay or discharge any tax, levy,
assessment, or governmental charge with respect to which no Lien has been filed of record, which is
being contested in good faith by appropriate proceedings diligently pursued, for which adequate
reserves have been established and the contest of which would not have a Material Adverse Effect.
Section 9.5. Insurance. Borrower will maintain, and will cause each Guarantor and each
Subsidiary to maintain, with financially sound and reputable insurance companies workmen’s
compensation insurance, liability insurance, and insurance on its property, assets and business,
all in such amounts and against such risks as at any time are usually insured against by Persons
engaged in similar businesses. Each insurance policy covering Collateral shall name Agent as lender
loss payee and provide that such policy will not be cancelled without thirty (30) days prior
written notice to Agent.
Section 9.6. Inspection; Field Audits; Appraisals; Environmental. (a) At any reasonable time
and from time to time during normal business hours and without undue interference to Borrower’s or
any Guarantor’s or any Subsidiary’s business, Borrower will permit, and will cause each Guarantor
and each Subsidiary to permit, representatives of Agent:
(i) To examine and make copies of the books and records of, and visit and inspect the
properties or assets of Borrower, Guarantors and any Subsidiary and to discuss the
business, operations, and financial
condition of any such Persons with their respective officers and employees and with
their independent certified public accountants;
(ii) To conduct Field Audits; provided, however, that Agent intends to conduct at
least one (1) Field Audit during each fiscal year of Borrower and the cost of one (1) Field
Audit during each fiscal year of Borrower shall be paid by Borrower; and
(iii) To conduct appraisals of the assets of Borrower and its Subsidiaries; provided,
however, that if an Event of Default has occurred and is continuing, the cost of one (1)
appraisal of all the assets of Borrower and its Subsidiaries during each calendar year
shall be paid by Borrower (otherwise such cost shall be paid by Lenders).
(b) In addition to its other rights regarding obtaining environmental reports contained in the
Deeds of Trust-Market Street, the Deeds of Trust-Port Lavaca and the Mortgage-Florida, if an Event
of Default has occurred and is continuing, Agent may obtain a
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Phase I Environmental Report on the Florida Property, the cost of which shall be paid by Borrower.
Section 9.7. Keeping Books and Records. Borrower will maintain, and will cause each Guarantor
and each Subsidiary to maintain, proper books of record and account in which full, true, and
correct, in all material respects, entries in conformity with GAAP shall be made of all dealings
and transactions in relation to its business and activities.
Section 9.8. Compliance with Laws. Borrower will comply, and will cause each Guarantor and
each Subsidiary to comply, with all applicable laws, rules, regulations, and orders of any court,
governmental authority, or arbitrator, except where failure to comply would not result in a
Material Adverse Effect.
Section 9.9. Compliance with Agreements. Borrower will comply, and will cause each Guarantor
and each Subsidiary to comply, with all agreements, contracts, and instruments binding on it or
affecting its properties or business, except when failure to comply would not result in a Material
Adverse Effect.
Section 9.10. Further Assurances. Borrower will execute and deliver, and will cause each
Guarantor and each Subsidiary to execute and deliver, such further instruments as may be reasonably
requested by Agent to carry out the provisions and purposes of this Agreement and the other Loan
Documents and to preserve and perfect the Liens of Agent in the Collateral.
Section 9.11. ERISA. Borrower will comply, and will cause each Guarantor and each Subsidiary
to comply, in all material respects with all minimum funding
requirements, and all other material requirements, of ERISA, if applicable, so as not to give
rise to any material liability thereunder.
Section 9.12. Continuity of Operations. Borrower will continue to conduct, and will cause each
of its Subsidiaries to continue to conduct, its primary businesses as conducted as of the Closing
Date and to continue its operations in such businesses.
Section 9.13. Operating Accounts. Borrower will maintain, and will cause each Guarantor and
each Subsidiary to maintain, its operating accounts at Agent.
ARTICLE X.
Negative Covenants
Borrower covenants and agrees that, as long as the Obligations or any part thereof are
outstanding or any Lender has any Commitment hereunder or Issuing Bank has any obligation to issue
any Letter of Credit hereunder or any Letter of Credit Liabilities exist, Borrower will
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perform and observe the covenants set forth below, unless Agent shall otherwise consent in writing.
Section 10.1. Debt. Borrower will not incur, create, assume or permit to exist, and will not
permit any Subsidiary to incur, create, assume, or permit to exist, any Debt, except (a) Debt to
Lenders (including, without limitation, any and all Letter of Credit Liabilities), (b) Debt in an
aggregate principal amount which does not exceed $100,000.00 outstanding at any time, (c) Bond
Obligations, (d) Capital Lease Obligations in an aggregate amount which does not exceed $250,000.00
outstanding at any time, (e) Other Subordinated Debt, (f) accounts payable in the ordinary course
of business, (g) Debt arising from the endorsement of instruments for collection in the ordinary
course of business, (h) Rate Management Transaction Obligations and (i) the inter-company loans and
advances permitted pursuant to Section 10.6 of this Agreement.
Section 10.2. Limitation on Liens. Borrower will not incur, create, assume or permit to exist,
and will not permit any Subsidiary to incur, create, assume or permit to exist, any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired, except (a) Liens in
favor of Agent as agent for Lenders, (b) purchase money Liens securing Debt permitted by Section
10.1(b), which Liens cover only the assets financed with the Debt permitted by Section 10.1(b), (c)
Liens on Bonded Receivables, which Liens secure only the related Bond Obligations, (d) Liens on
cash deposits in an aggregate amount which does not exceed $250,000.00 at any time, which Liens
secure only Bond Obligations, (e) Liens securing Debt permitted by Section 10.1(d), which Liens
cover only the assets subject to the Capital Lease Obligations permitted by Section 10.1(d), (f)
Permitted Encumbrances, if any, as defined in the Deeds of Trust-Market Street,
the Deeds of Trust-Port Lavaca and the Mortgage-Florida, (g) Liens for taxes, assessments, or
other governmental charges which are not delinquent or which are being contested in good faith as
provided in Section 9.4, (h) Liens of mechanics, materialmen, warehousemen, carriers or other
similar statutory Liens securing obligations that are not yet due and are incurred in the ordinary
course of business, (i) statutory Liens and contractual Liens of landlords, created in the ordinary
course of business for amounts which are not delinquent or past due, (j) Liens of judgment
creditors provided such Liens do not secure judgments the existence of which results in an Event of
Default pursuant to Section 12.1(g), (k) Liens in favor of banking institutions arising by
operation of law encumbering deposits (including the right of setoff) held by such banking
institutions incurred in the ordinary course of business and that are within the general parameters
customary in the banking industry, (l) Liens on cash deposits pledged as collateral to secure Cash
Secured Letters of Credit, and (m) subordinate Liens in favor of Borrower’s and Guarantors’ bonding
companies which Liens secure only the related Bond Obligations (collectively, “Permitted Liens”).
Section 10.3. Mergers, Acquisitions, Dissolutions and Disposition of Assets. Borrower will
not, and will not permit any Guarantor or any Subsidiary to, (a) become a party to a merger,
consolidation or other business combination (“Merger”) or purchase or otherwise
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acquire all or a substantial part of the assets of any Person or any shares or other evidence of
beneficial ownership of any Person (“Acquisition”), unless (i) immediately before such Merger or
Acquisition no Event of Default exists, (ii) no Event of Default would arise as a result of giving
effect to such Merger or Acquisition, (iii) prior to such Merger or Acquisition Borrower has
delivered to Agent notice of such Merger or Acquisition and evidence that after giving effect to
such Merger or Acquisition the Total Leverage Ratio will be less than 2.50 to 1.00, and (iv) prior
to any Merger or Acquisition, for which the consideration is $5,000,000.00 or more Borrower has
delivered to Agent (A) copies of all appraisals (real property and/or equipment) obtained by
Borrower in connection with such Merger or Acquisition, (B) copies of other information used by
Borrower to determine the value of the acquired Person or assets and (C) a description of the
structure of Borrower and its Subsidiaries following such Merger or Acquisition, (b) dissolve or
liquidate, (c) sell, lease, assign, transfer or otherwise dispose of substantially all of its
assets, except dispositions of inventory in the ordinary course of business, (d) enter into any
partnership or joint venture, or (e) enter into any agreement to do any of the foregoing. Borrower
will own no assets other than the stock of OAS, the membership interests of OCLP and the ownership
interest in X. Xxxxxx. OCLP will own no assets other than limited partnership interests in
Construction. OCGP will own no assets other than the general partnership interests in Construction.
KFMSLP will own no assets other than the limited partnership interests of King Xxxxxx. KFMSGP will
own no assets other than the general partnership interests in King Xxxxxx. No Subsidiary of
Borrower may issue, sell or otherwise dispose of any of its equity securities (of
any class) or its ownership interests (partnership, membership or otherwise) to any Person other
than Borrower or any Subsidiary.
Section 10.4. Subsidiaries. Borrower will not, and will not permit any Guarantor or any
Subsidiary to, create or acquire any Subsidiary, unless at the time of the creation or acquisition
of such Subsidiary, (a) Borrower, such Guarantor or such Subsidiary has notified Agent of the
creation or the acquisition of such Subsidiary, (b) Borrower, such Guarantor or such Subsidiary has
pledged the ownership interests in such Subsidiary to Agent, and (c) such Subsidiary (i) has
executed and delivered to Agent a Security Agreement-Subsidiary-General and a Guaranty Agreement,
(ii) if such Subsidiary owns equity interests, has executed and delivered to Agent a pledge
agreement in form and substance satisfactory to Agent, and (iii) has delivered to the Agent its
Organizational Documents and evidence of its authority to enter into the documents referred to in
clause (c)(i) and (ii) above. Security Agreements-Subsidiary-General, Guaranty Agreements and
pledge agreements executed by Subsidiaries pursuant to the preceding sentence shall constitute Loan
Documents.
Section 10.5. Restricted Payments; Management Fees. Borrower will not declare or pay any
dividends or make any other payment or distribution (in cash, property, or obligations) on account
of its capital stock, or redeem, purchase, retire, or otherwise acquire any of its capital stock,
or set apart any money for a sinking or other analogous fund for any dividend or other distribution
on its capital stock or for any redemption, purchase, retirement, or other acquisition of any of
its capital stock. Notwithstanding the foregoing, Borrower may repurchase or otherwise acquire any
of its capital stock to the extent required or provided for
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by any stock incentive plan of Borrower. Neither Borrower nor any Subsidiary shall enter into any
other agreement that prohibits or limits the amount of dividends, Distributions, or loans that may
be paid or made to Borrower by any of its Subsidiaries.
Section 10.6. Loans and Advances. Borrower will not make, and will not permit any Guarantor or
any Subsidiary to make, any advance, loan or extension of credit to any Person (including any
employee, officer or director of Borrower, any Guarantor or any Subsidiary); provided, however,
that Borrower may make loans and advances to any Guarantor or any Subsidiary, and any Subsidiary or
any Guarantor may make loans and advances to any other Subsidiary and any other Guarantor, and
further provided that the Borrower and its Subsidiaries may advance money for anticipated expenses
to any of their respective employees, officers, and directors in an outstanding amount which does
not exceed $100,000.00 at any time.
Section 10.7. Investments. Borrower will not make, and will not permit any Guarantor or any
Subsidiary to make, any capital contribution to or investment in, or purchase, or permit any
Guarantor or any Subsidiary to purchase, any stock, bonds, notes, debentures, or other securities
of any Person, except (a) readily
marketable direct obligations of the United States of America, (b) fully insured certificates
of deposit with maturities of one year or less from the date of acquisition of Agent or any
commercial bank operating in the United States having capital and surplus in excess of
$100,000,000.00, (c) commercial paper of a domestic issuer if at the time of purchase such paper is
rated in one of the two highest rating categories of Standard and Poor’s Corporation or Xxxxx’x
Investors Service, Inc., (d) investments made through Agent or its Affiliates and approved by
Agent, and (e) capital contributions to or investments in any of the Subsidiaries.
Section 10.8. Compliance with Environmental Laws. Borrower will not, and will not permit any
Guarantor or any Subsidiary to, (a) use (or permit any tenant to use) any of their respective
properties or assets for the handling, processing, storage, transportation, or disposal of any
Hazardous Substance, other than in the ordinary course of its business and in accordance with
applicable Environmental Laws and other then in connection with the Florida Remediation, (b)
generate any Hazardous Substance, other than in the ordinary course of its business and in
accordance with applicable Environmental Laws, (c) conduct any activity which is likely to cause a
release or threatened release of any Hazardous Substance, other than in the ordinary course of its
business and in accordance with applicable Environmental Laws, or (d) otherwise conduct any
activity or use any of their respective properties or assets in any manner that is likely to
violate in any material respect any Environmental Law.
Section 10.9. Accounting. Borrower will not make, and will not permit any Guarantor or any
Subsidiary to make, any material change in accounting treatment or reporting practices, except as
required by GAAP or as required as a result of Borrower operating as a public company and issuing
stock, warrants, rights and options.
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Section 10.10. Change of Business. Borrower will not enter into, or permit any Subsidiary to
enter into, any type of business which is materially different from the business in which Borrower
and its Subsidiaries, taken as a whole, are presently engaged.
Section 10.11. Transactions With Affiliates. Except for certain agreements listed in Schedule
10.11, Borrower will not enter into, or permit to exist, and will not permit any Subsidiary to
enter into or permit to exist, any transaction, arrangement or contract (including any lease or
other rental agreement) with any of its Affiliates which is on terms which are less favorable than
are obtainable from any Person who is not an Affiliate of Borrower or such Subsidiary.
Section 10.12. Capital Expenditures. Borrower will not permit the aggregate Capital
Expenditures of Borrower and its Subsidiaries to exceed $18,000,000.00 during any fiscal year;
provided, however that Capital Expenditures incurred in connection with Mergers and Acquisitions
(as defined in Section 10.3) shall be excluded from the limitations contained in this Section
10.12.
Section 10.13.ERISA. Borrower will not, and will not permit any Guarantor or any Subsidiary
to, engage in any transaction in connection with which the Borrower, such Guarantor or such
Subsidiary could be subject to a civil penalty assessed pursuant to a material ERISA violation.
ARTICLE XI.
Financial Covenants
Borrower covenants and agrees that, as long as the Obligations or any part thereof are
outstanding or any Lender has any Commitment hereunder or Issuing Bank has any obligation to issue
any Letter of Credit hereunder or any Letter of Credit Liabilities exist, Borrower will observe and
perform the financial covenants set forth below, unless Agent shall otherwise consent in writing.
Section 11.1. Net Worth. Borrower will at all times maintain Net Worth in an amount not less
than the sum of (a) $40,000,000.00, plus (b) fifty percent (50%) of Adjusted Net Income since
December 31, 2006, plus (c) seventy-five percent (75%) of net proceeds of equity issuance. For the
purpose of calculating clause (b), Adjusted Net Income shall be the sum of Adjusted Net Income of
Borrower and its Subsidiaries for each fiscal quarter beginning with the fiscal quarter ending
March 31, 2007, provided, however that for any fiscal quarter for which Adjusted Net Income was
less than zero, Adjusted Net Income for such fiscal quarter shall be assumed to be zero (and shall
be calculated as zero for such quarter). Net Worth shall be calculated and tested quarterly as of
the last day of each fiscal quarter of Borrower, commencing with the fiscal quarter ending March
31, 2007.
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Section 11.2. Fixed Charge Coverage Ratio. Borrower will at all times maintain a Fixed Charge
Coverage Ratio of not less than 1.30 to 1.00. The Fixed Charge Coverage Ratio will be calculated
and tested quarterly as of the last day of each fiscal quarter of Borrower, commencing with the
fiscal quarter ending March 31, 2007 on a cumulative basis for the four (4) fiscal quarters ended
as of such date (a “rolling or trailing four (4) quarters” basis).
Section 11.3. Total Leverage Ratio. Borrower will maintain a Total Leverage Ratio of not
greater than 3.00 to 1.00. The Total Leverage Ratio shall be calculated and tested quarterly as of
the last day of each fiscal quarter of Borrower, commencing with the fiscal quarter ending March
31, 2007, and, for purposes of calculating the Total Leverage Ratio, EBITDA shall be determined on
a cumulative basis for the four (4) fiscal quarters ended as of such date (a “rolling or trailing
four (4) quarters” basis).
ARTICLE XII.
Default
Section 12.1. Events of Default. Each of the following shall be deemed an “Event of Default”:
(a) Borrower shall fail to pay (i) the principal of the Obligations (or any part
thereof) when due or (ii) any other portion of the Obligations (including interest and
fees) and such failure shall continue for a period of five (5) days.
(b) Any representation or warranty made or deemed made by Borrower or any Obligated
Party (or any of their respective officers) in any Loan Document or in any certificate,
report, notice, or financial statement furnished at any time in connection with this
Agreement shall be false, misleading, or erroneous in any material respect when made or
deemed to have been made.
(c) Borrower or any Obligated Party shall fail to perform, observe, or comply with any
covenant, agreement, or term (i) contained in Section 9.1, Article X or Article XI, or (ii)
contained in any other Section or Article of this Agreement or any other Loan Document and
such failure shall continue for thirty (30) days following the earlier of the date on which
(A) Borrower or such Obligated Party has knowledge of such failure, or (B) Agent gives
Borrower or such Obligated Party notice of such failure.
(d) Borrower, any Subsidiary, or any Obligated Party shall commence a voluntary
proceeding seeking liquidation, reorganization, or other relief with respect to itself or
its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar
official of it or a substantial part of its property or shall
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consent to any such relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it or shall make a general assignment for
the benefit of creditors or shall generally fail to pay its debts as they become due or shall take
any corporate action to authorize any of the foregoing.
(e) An involuntary proceeding shall be commenced against Borrower, any Subsidiary, or any
Obligated Party seeking liquidation, reorganization, or other relief with respect to it or its
debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or a
substantial part of its property, and such involuntary proceeding shall remain undismissed and
unstayed for a period of sixty (60) days.
(f) Borrower, any Subsidiary, or any Obligated Party shall fail to discharge within a period
of sixty (60) days after the commencement thereof any attachment, sequestration, or similar
proceeding or proceedings involving an
aggregate amount in excess of $1,000,000.00 against any of its assets or properties.
(g) Any final (i) judgment or order for payment of money in excess of $250,000.00, or
otherwise having a Material Adverse Effect, not covered by insurance for which Borrower, any
Subsidiary or any Obligated Party is liable or (ii) non-monetary judgment or order having a
Material Adverse Effect, not covered by insurance for which Borrower, any Subsidiary or any
Obligated Party is liable, shall be rendered against Borrower, any Subsidiary or any Obligated
Party, which judgment remains in effect for sixty (60) days without being stayed or deferred.
(h) Borrower, any Subsidiary, or any Obligated Party shall fail to pay when due any principal
of or interest on any Debt having a principal amount in excess of $250,000.00 (other than the
Obligations), or the maturity of any such Debt shall have been accelerated, or any such Debt shall
have been required to be prepaid prior to the stated maturity thereof, or any event shall have
occurred that permits (or, with the giving of notice or lapse of time or both, would permit) any
holder or holders of such Debt or any Person acting on behalf of such holder or holders to
accelerate the maturity thereof or require any such prepayment.
(i) This Agreement or any other Loan Document shall cease to be in full force and effect or
shall be declared null and void or the validity or enforceability thereof shall be contested or
challenged by Borrower, any Subsidiary, any Obligated Party or any of their respective
shareholders, or Borrower or any Obligated Party shall deny that it has any further liability or
obligation under any of the Loan Documents, or any Lien or security interest created by the Loan
Documents shall for any reason cease to be a valid Lien of the priority described in this
Agreement.
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(j) A Change of Control shall occur.
(k) Borrower or any of its Subsidiaries (i) shall fail to have adequate bonding
capacity to operate their respective businesses in the ordinary course of business as
reasonably determined by Agent in good faith and such failure shall continue for thirty
(30) days or (ii) shall receive notice that its bonding capacity is to be or has been
denied, terminated or withdrawn and a period of thirty (30) days shall elapse following the
date of receipt of such notice by Borrower or such Subsidiary without Borrower or such
Subsidiary replacing such denied, terminated or withdrawn bonding capacity with another
bonding agent.
Section 12.2. Remedies Upon Default. If any Event of Default shall occur, Agent may do any one
or more of the following: (a) declare the outstanding principal of and accrued and unpaid interest
on the Notes and the Obligations or any part thereof to be immediately due and payable, and the
same shall thereupon become immediately due and payable, without notice, demand,
presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate,
notice of intent to demand, protest, or other formalities of any kind, all of which are hereby
expressly waived by Borrower, (b) terminate the Commitments-Revolving Advances and the
Commitments-Acquisition Term Loan without notice to Borrower, (c) foreclose or otherwise enforce
any Lien granted to Agent to secure payment and performance of the Obligations, and (d) exercise
any and all rights and remedies afforded by the laws of the State of Texas or any other
jurisdiction by any of the Loan Documents, by equity or otherwise; provided, however, that upon the
occurrence of an Event of Default under Section 12.1(d) or Section 12.1(e), the
Commitments-Revolving Advances and the Commitments-Acquisition Term Loan shall automatically
terminate, and the outstanding principal of and accrued and unpaid interest on the Notes and the
other Obligations shall become immediately due and payable without notice, demand, presentment,
notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to
demand, protest, or other formalities of any kind, all of which are hereby expressly waived by
Borrower.
Section 12.3. Cash Collateral. If any Event of Default shall occur and is continuing, Borrower
shall, if requested by Agent, immediately deposit with and pledge to Agent, cash or cash equivalent
investments in an amount equal to the outstanding Letter of Credit Liabilities as security for the
Obligations.
Section 12.4. Performance by Agent. If Borrower shall fail to perform any covenant, duty, or
agreement contained in any of the Loan Documents, Agent may perform or attempt to perform such
covenant, duty, or agreement on behalf of Borrower. In such event, Borrower shall, at the request
of Agent, promptly pay any reasonable and documented amount reasonably expended by Agent in such
performance or attempted performance to Agent, together with interest thereon at the Default Rate
from the date of such expenditure until paid. Notwithstanding the foregoing, it is expressly agreed
that neither Agent nor any Lender shall
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have any liability or responsibility for the performance of any obligation of Borrower under this
Agreement or any other Loan Document.
ARTICLE XIII.
The Agent
Section 13.1. Appointment and Authorization. (a) Each Lender hereby irrevocably (subject to
Section 13.9) appoints, designates and authorizes Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other Loan Document,
Agent (which term as used in this Section 13.1(a), Section 13.3, 13.6 and 13.7 shall include its
Affiliates and its
own and its Affiliates’ officers, directors, employees and agents) shall not have any duty or
responsibility except those expressly set forth herein, nor shall Agent have or be deemed to have
any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Documents or
otherwise exist against Agent.
(b) Issuing Bank shall act on behalf of Lenders with respect to any Letters of Credit issued
by it and the documents associated therewith. The Issuing Bank shall have all of the benefits and
immunities (i) provided to Agent in this Article XIII with respect to any acts taken or omissions
suffered by Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued
by it and the applications and agreements for letters of credit pertaining to such Letters of
Credit as fully as if the term “Agent”, as used in this Article XIII, including Issuing Bank with
respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect
to Issuing Bank.
Section 13.2. Delegation of Duties. Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects
with reasonable care.
Section 13.3. Liability of Agent. None of Agent nor any of its directors, officers, employees
or agents shall (a) be liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Documents or the transactions contemplated
hereby (except for their own gross negligence or willful misconduct), or (b) be responsible in any
manner to any Lender for any recital, statement, representation or warranty (whether written or
oral) made by Borrower or any Subsidiary or
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Affiliate of Borrower, or any officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other document referred to or provided for
in, or received by Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document, or for any failure of Borrower or any other party to any Loan Document to
perform its obligations hereunder or thereunder. Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of Borrower or any of Borrower’s Subsidiaries or Affiliates.
Section 13.4. Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex, telephone or electronic
message, statement or other document or conversation believed by it to be genuine and correct
and to have been signed, sent, or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to Borrower), independent accountants and other
experts selected by Agent with reasonable care. Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems appropriate and, if it so
requests, confirmation from Lenders of their obligation to indemnify Agent against any and all
liability and expense which may be incurred by it by reason of taking or continuing to take any
such action. Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Documents in accordance with a request or consent of the
Majority Lenders and such request and any action taken or failure to act pursuant thereto shall be
binding upon all Lenders.
Section 13.5. Notice of Default. Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default or Unmatured Event of Default, unless Agent shall have received
written notice from a Lender or Borrower referring to this Agreement, describing such Event of
Default or Unmatured Event of Default and stating that such notice is a “notice of default”. The
Agent will notify Lenders of its receipt of any such notice. Agent shall (subject to any requested
indemnification pursuant to Section 13.7) take such action with respect to such Event of Default or
Unmatured Event of Default as may be requested by the Majority Lenders in accordance with Article
XIII; provided that unless and until Agent has received any such request, Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of
Lenders.
Section 13.6. Credit Decision. Each Lender acknowledges that Agent has not made any
representation or warranty to it, and that no act by Agent hereafter taken, including any review of
the affairs of Borrower and its Subsidiaries, shall be deemed to constitute any representation or
warranty by Agent to any Lender. Each Lender represents to Agent that it has,
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independently and without reliance upon Agent and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of Borrower and its
Subsidiaries, and made its own decision to enter into this Agreement and to extend credit to
Borrower hereunder. Each Lender also represents that it will, independently and without reliance
upon Agent and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of Borrower. Except for
notices, reports and other documents expressly herein required to be furnished to the Lenders by
Agent, Agent shall not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations, property, financial or other
condition or creditworthiness of Borrower or its Subsidiaries which may come into the possession of
the Agent.
Section 13.7. INDEMNIFICATION. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE
CONSUMMATED, THE LENDERS SHALL INDEMNIFY UPON DEMAND AGENT AND ITS DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS (TO THE EXTENT NOT REIMBURSED BY OR ON BEHALF OF BORROWER AND WITHOUT LIMITING THE
OBLIGATION OF BORROWER TO DO SO), BASED ON ITS PRO RATA SHARE-TOTAL, FROM AND AGAINST ANY AND ALL
CLAIMS; PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY PAYMENT TO ANY SUCH PERSON OF ANY PORTION
OF THE CLAIMS RESULTING FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT
LIMITATION OF THE FOREGOING, EACH LENDER SHALL REIMBURSE AGENT UPON DEMAND FOR ITS PRO RATA
SHARE-TOTAL OF ANY COSTS OR OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED
BY AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION,
AMENDMENT OR ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE) OF, OR
LEGAL ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT, OR ANY DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN, TO THE EXTENT THAT AGENT IS NOT
REIMBURSED FOR SUCH EXPENSES BY OR ON BEHALF OF BORROWER. THE UNDERTAKING IN THIS SECTION SHALL
SURVIVE REPAYMENT OF THE REVOLVING ADVANCES, THE REAL ESTATE TERM LOAN, THE ACQUISITION TERM LOAN,
CANCELLATION OF EACH NOTE, EXPIRATION OR TERMINATION OF THE LETTERS OF CREDIT, ANY FORECLOSURE
UNDER, OR MODIFICATION, RELEASE OR DISCHARGE OF, ANY OR ALL OF THE LOAN DOCUMENTS, TERMINATION OF
THIS AGREEMENT AND THE RESIGNATION OR REPLACEMENT OF AGENT.
Section 13.8. Agent in Individual Capacity. Amegy Bank National Association and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits from,
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acquire equity interests in and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with Borrower and its Subsidiaries and Affiliates as though Amegy
Bank National Association were not Agent or Issuing Bank hereunder and without notice to or consent
of Lenders. Lenders acknowledge that, pursuant to such activities, Amegy Bank National Association
or its Affiliates may receive information regarding Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in favor of Borrower or such
Affiliate) and acknowledge that Agent shall be under
no obligation to provide such information to them. With respect to the Revolving Advances, the Real
Estate Term Loan and the Acquisition Term Loan, and Amegy Bank National Association’s Pro Rata
Share thereof, Amegy Bank National Association and its Affiliates shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as Amegy Bank National
Association were not Agent and Issuing Bank, and the terms “Lender” and “Lenders” including Amegy
Bank National Association and its Affiliates, to the extent applicable, in their individual
capacities.
Section 13.9. Successor Agent. Agent may resign as Agent upon thirty (30) days’ notice to
Lenders and Borrower. If Agent resigns under this Agreement, Lenders shall, with (so long as no
Event of Default has occurred and is continuing) the consent of Borrower (which shall not be
unreasonably withheld or delayed), appoint from among Lenders a successor agent for Lenders. If no
successor agent is appointed prior to the effective date of the resignation of Agent, Agent may
appoint, after consulting with Lenders and Borrower, a successor agent from among Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term “Agent” shall mean such
successor agent, and the retiring Agent’s appointment, powers and duties as Agent shall be
terminated. After any retiring Agent’s resignation hereunder as Agent, the provisions of this
Article XIII and Sections 13.1, 13.3 and 13.7 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is thirty (30) days following a retiring Agent’s
notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become
effective and Lenders shall perform all of the duties of Agent hereunder until such time, if any,
as the Majority Lenders (with the consent of Borrower) appoint a successor agent as provided for
above.
Section 13.10. Collateral Matters. Lenders irrevocably authorize Agent, at its option and in
its discretion, to release any Lien granted to or held by Agent under any Loan Document (a) upon
termination of the Combined Commitments-Revolving Advances and the Combined Commitments-Acquisition
Term Loan and payment in full of all Revolving Advances, the Real Estate Term Loan, the Acquisition
Term Loan, the Letter of Credit Liabilities and all other obligations of Borrower hereunder and the
expiration of termination of all Letters of Credit; (b) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition permitted hereunder; or (c) subject to
Section 14.7, if approved, authorized or ratified in writing by one hundred percent (100%) of the
Lenders. Upon request
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by Agent at any time, Lenders will confirm in writing Agent’s authority to release, or subordinate
its interest in, particular types or items of collateral pursuant to this Section 13.10.
ARTICLE XIV.
Miscellaneous
Section 14.1. Expenses. Borrower hereby agrees to pay Agent and Lenders, as applicable, on
demand (a) all reasonable and documented costs and expenses incurred by Agent (but not of other
Lenders) in connection with the preparation, negotiation, and execution of this Agreement and the
other Loan Documents and any and all amendments, modifications, renewals, extensions, and
supplements thereof and thereto, including, without limitation, the costs associated with field
examinations (subject to Section 9.6(b)), appraisals and collateral reviews and fees and expenses
of Agent’s legal counsel, (b) all reasonable and documented costs and expenses incurred by Agent
and each Lender in connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement or any other Loan Document, including, without limitation, the
reasonable and documented fees and expenses of each such Person’s legal counsel, and (c) all other
reasonable and documented costs and expenses incurred by Agent in connection with this Agreement or
any other Loan Document, including, without limitation, all costs, expenses, taxes, assessments,
filing fees, and other charges levied by any governmental authority or otherwise payable in respect
of this Agreement or any other Loan Document or in obtaining any insurance policy, audit or
appraisal in respect of the Collateral.
SECTION 14.2. INDEMNIFICATION. BORROWER HEREBY INDEMNIFIES AGENT, ISSUING BANK AND EACH LENDER
AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND
AGENTS FROM, AND HOLDS EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS,
DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, AND REASONABLE AND DOCUMENTED COSTS AND EXPENSES
(INCLUDING ATTORNEYS’ FEES) (COLLECTIVELY, “CLAIMS”) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH
DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY,
PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY BORROWER OF ANY REPRESENTATION,
WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (D) THE PRESENCE,
RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY HAZARDOUS SUBSTANCE LOCATED ON,
ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF BORROWER OR ANY SUBSIDIARY, (E) ANY
ACT OR OMISSION OF AGENT OR ANY LENDER BASED UPON ANY FAX OR ELECTRONIC TRANSMISSION, OR (F) ANY MATTER RELATED TO ANY LETTER
OF CREDIT, INCLUDING, WITH RESPECT TO ALL OF THE ABOVE, ANY
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CLAIM WHICH ARISES AS A RESULT OF THE NEGLIGENCE OF ANY INDEMNIFIED PERSON; PROVIDED, HOWEVER, THAT
BORROWER’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 14.2 SHALL NOT APPLY TO THE EXTENT THAT
THE CLAIMS ARISE AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED
PERSON.
Section 14.3. Limitation of Liability. Neither Agent, Issuing Bank, any Lender nor any
affiliate, officer, director, employee, attorney, or agent of such Person shall have any liability
with respect to, and Borrower (for itself and on behalf of its Subsidiaries) hereby waives,
releases, and agrees not to xxx any of them upon, any claim for any special, indirect, incidental,
or consequential damages suffered or incurred by Borrower in connection with, arising out of, or in
any way related to, this Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. Borrower (for itself and on
behalf of its Subsidiaries) hereby waives, releases, and agrees not to xxx Agent, Issuing Bank, any
Lender or any of such Person’s affiliates, officers, directors, employees, attorneys, or agents for
punitive damages in respect of any claim in connection with, arising out of, or in any way related
to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by
this Agreement or any of the other Loan Documents.
Section 14.4. No Waiver; Cumulative Remedies. No failure on the part of Agent, Issuing Bank,
or any Lender to exercise and no delay in exercising, and no course of dealing with respect to, any
right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power, or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement and the other Loan Documents are cumulative and
not exclusive of any rights and remedies provided by law.
Section 14.5. Successors and Assigns. This Agreement is binding upon and shall inure to the
benefit of Agent, Issuing Bank, each Lender and Borrower and their respective successors and
permitted assigns, except that Borrower may not assign or transfer any of its rights or obligations
under this Agreement without prior written consent of Agent.
Section 14.6. Survival. All representations and warranties made in this Agreement or any other
Loan Document or in any document, statement, or certificate furnished in connection with this
Agreement shall survive the execution and delivery of this Agreement and the other Loan Documents,
and no investigation by Agent, Issuing Bank or any Lender or any closing shall affect the
representations and warranties or the right of Agent, Issuing Bank or any Lender to rely upon
them. Without prejudice to the survival of any other obligation of Borrower hereunder, the
obligations of Borrower under Sections 14.1 and 14.2 shall survive repayment of the Notes and
termination of the Combined Commitments-Revolving Advances, the Combined Commitments-Acquisition
Term Loan and the Letters of Credit.
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Section 14.7. Amendments. No amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement or any Note shall in any event be effective unless the same shall
be in writing and signed and delivered by Lenders having an aggregate Pro Rata Share of not less
than the aggregate Pro Rata Share expressly designated herein with respect thereto or, in the
absence of such designation as to any provision of this Agreement or any Note, by the Majority
Lenders, and then any such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No amendment, modification,
waiver or consent shall change the Pro Rata Share-Revolving Advances, the Pro Rata Share-Real
Estate Term Loan or the Pro Rata Share-Acquisition Term Loan of any Lender without the consent of
such Lender. No amendment, modification, waiver or consent shall (i) increase the Combined
Commitments-Revolving Advances, the principal amount of the Combined Commitments-Acquisition Term
Loan or the principal amount of the Real Estate Term Loan, (ii) extend the date for payment of any
principal of or interest on the Revolving Advances, the Real Estate Term Loan, the Acquisition Term
Loan or any fees payable hereunder, (iii) extend any Lender’s Commitment-Revolving Advances,
Commitment-Acquisition Term Loan or the Maturity Date Real Estate Term Loan, (iv) reduce the
principal amount of any Revolving Advance, the Real Estate Term Loan or the Acquisition Term Loan,
the rate of interest thereon or any fees payable hereunder, (v) release any guaranty or all or any
substantial part of the collateral granted under the Loan Documents (except that Agent shall be
entitled to release any Collateral to the extent the sale or disposition thereof is permitted under
this Agreement), or (vi) reduce the aggregate Pro Rata Share required to effect an amendment,
modification, waiver or consent without, in each case, the consent of all Lenders. No provision of
Article XIII or other provision of this Agreement affecting Agent in its capacity as such shall be
amended, modified or waived without the consent of Agent. No provision of this Agreement relating
to the rights or duties of the Issuing Bank in its capacity as such shall be amended, modified or
waived without the consent of the Issuing Bank.
Section 14.8. Maximum Interest Rate. No provision of this Agreement or of any other Loan
Documents shall require the payment or the collection of interest in excess of the maximum
permitted by applicable law. If any excess of interest in such respect is hereby provided for, or
shall be adjudicated to be so provided, in any other Loan Documents or otherwise in connection with
this loan transaction, the provisions of this Section shall govern and prevail and neither Borrower
nor the sureties, guarantors, successors, or assigns of Borrower shall be obligated to pay the
excess amount of such interest or any other excess sum
paid for the use, forbearance, or detention of sums loaned pursuant hereto. In the event
Agent, Issuing Bank or any Lender ever receives, collects, or applies as interest any such sum,
such amount which would be in excess of the maximum amount permitted by applicable law shall be
applied as a payment and reduction of the principal of the indebtedness evidenced by the Notes;
and, if the principal of the Notes has been paid in full, any remaining excess shall forthwith be
paid to Borrower. In determining whether or not the interest paid or payable exceeds the Maximum
Rate, Borrower and Agent, Issuing Bank and Lenders shall, to the extent permitted by applicable
law, (a) characterize any non-principal payment as an
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expense, fee, or premium rather than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount
of interest throughout the entire contemplated term of the indebtedness evidenced by the Notes so
that interest for the entire term does not exceed the Maximum Rate.
Section 14.9. Notices. All notices and other communications provided for in this Agreement
and the other Loan Documents shall be in writing and may be emailed, telecopied (faxed), mailed by
certified mail return receipt requested, or delivered to the intended recipient at the addresses
specified on the signature pages hereof or at such other address as shall be designated by any such
party in a notice to the other parties given in accordance with this Section; provided, however,
that (a) all electronic mail transmissions may be only in the form of electronically scanned
documents, showing all signatures, and (b) electronic mail may be used only to distribute routine
communications, such as financial statements and Borrowing Base Certificates, and not for any other
purpose. Except as otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given (a) when transmitted by telecopy (fax), subject to confirmation of receipt,
(b) when received if transmitted by electronic mail, (c) when personally delivered or, (d) in the
case of a mailed notice, two (2) Business Days after being duly deposited in the mails, in each
case given or addressed as aforesaid; provided, however, that notices to Agent pursuant to Article
II or Article IV shall not be effective until received by Agent.
Section 14.10. Applicable Law; Venue; Service of Process. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas and the applicable laws of the
United States of America. This Agreement has been entered into in Xxxxxx County, Texas and it shall
be performable for all purposes in Xxxxxx County, Texas. Any action or proceeding against Borrower
under or in connection with any of the Loan Documents may be brought in any state or federal court
in Xxxxxx County, Texas, and Borrower hereby irrevocably submits to the nonexclusive jurisdiction
of such courts and waives any objection it may now or hereafter have as to the venue of any such
action or proceeding brought in any such court or that any such court is an inconvenient forum.
Borrower agrees that service of process upon it may be made by certified or registered mail, return
receipt requested, at its office
specified in this Agreement. Nothing herein or in any of the other Loan Documents shall affect
the right of Agent or any Lender to serve process in any other manner permitted by law or shall
limit the right of Agent or any Lender to bring any action or proceeding against Borrower or with
respect to any of its property in courts in other jurisdictions. Any action or proceeding by
Borrower against Agent or any Lender shall be brought only in a court located in Xxxxxx County,
Texas.
Section 14.11. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
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Section 14.12. Severability. Any provision of this Agreement held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Agreement and the effect thereof shall be confined to the provision held to be invalid or illegal.
Section 14.13. Headings. The headings, captions, and arrangements used in this Agreement are
for convenience only and shall not affect the interpretation of this Agreement.
Section 14.14. Non-Application of Chapter 346 of Texas Finance Code. The provisions of
Chapter 346 of the Texas Finance Code are specifically declared by the parties hereto not to be
applicable to this Agreement or any of the other Loan Documents or to the transactions contemplated
hereby.
Section 14.15. Consent to Participations. Any Lender shall have the right at any time and from
time to time to sell or transfer one or more participation interests in the Notes and the
indebtedness evidenced thereby to one or more purchasers (“Purchasers”), whether related or
unrelated to such Lender; provided, however, that (a) such Lender’s obligations under this
Agreement shall remain unchanged, (b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (c) the participant shall be entitled to
the benefit of the yield protection provisions contained in Sections 5.5, 5.8 and 5.9 and the right
to setoff contained in Section 6.2, and (d) the Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the Borrower relating to its
Revolving Advances, the Real Estate Term Loan, the Acquisition Term Loan, and its Notes and to
approve any amendment, modification, or waiver of any provisions of this Agreement (other than
amendments, modifications, or waivers decreasing the amount of principal of or the rate at which
interests is payable on such Revolving Advances, the Real Estate Term Loan, the Acquisition Term
Loan, or Notes, extending any scheduled principal payment date or date fixed for the payment of
interests on such Revolving Advances, the Real Estate Term Loan, the Acquisition Term Loan or
Notes, or extending its Commitment-Revolving Advances or Commitment-Acquisition Term Loan). Any
Lender may
provide to any one or more Purchasers or potential Purchasers any information, financial
statements, data or knowledge such Lender may have about Borrower or about any other matter
relating to the Obligations, provided that such Purchasers or potential Purchasers first agree in
writing to be bound by the confidentiality obligations of such Lender under Section 14.19 of this
Agreement. Borrower agrees that the owners of any participation interests will be considered as the
absolute owners of their interests in the Obligations and will, subject to the terms of this
Section 14.15, have all the rights granted under the participation agreements or other agreements
governing the sale of their participation interests. Borrower waives all rights of offset or
counterclaim that it may now or later have against such Lender or against any Purchaser and agrees
that such Lender may enforce Borrower’s obligations under the Loan Documents irrespective of the
failure or insolvency of any owner of any interest in the
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Obligations. Any Lender which participates a portion of the Obligations shall promptly notify
Borrower of such participation.
Section 14.16. Assignments. Any Lender may, with the prior written consents of Issuing Bank
and Agent and (so long as no Event of Default has occurred and is continuing) Borrower (which
consents shall not be unreasonably delayed or withheld and, in any event, shall not be required for
an assignment by any Lender to one of its Affiliates), at any time assign and delegate to an
Eligible Assignee all or any fraction of such Lender’s Revolving Advances, Commitment-Revolving
Advances, Acquisition Advances and Commitment-Acquisition Term Loan and/or its Pro Rata Share of
the Real Estate Term Loan in a minimum aggregate amount equal to the lesser of the amount of the
assigning Lender’s Pro Rata Share of the Combined Commitments-Revolving Advances, the Combined
Commitments-Acquisition Term Loan or the Real Estate Term Loan, as applicable, and (a)
$2,500,000.00 if no Event of Default has occurred and is continuing and (b) $1,000,000.00 if an
Event of Default has occurred and is continuing; provided that Borrower and Agent shall be entitled
to continue to deal solely and directly with such Lender in connection with the interests so
assigned and delegated to an Eligible Assignee until the date when all of the following conditions
shall have been met:
(a) the assigning Lender and the Eligible Assignee shall have executed and delivered
to Borrower and Agent an Assignment and Acceptance, together with any documents required to
be delivered thereunder, which Assignment and Acceptance shall have been accepted by Agent;
(b) except in the case of an assignment by a Lender to one of its Affiliates, the
assigning Lender or the Eligible Assignee shall have paid Agent a processing fee of $3,500;
and
(c) five (5) Business Days (or such lesser period of time as the Agent and the
assigning Lender shall agree) shall have passed after
written notice of such assignment and delegation, together with payment instructions,
addresses and related information with respect to such Eligible Assignee, shall have been
given to Borrower and Agent by such assigning Lender and the Eligible Assignee.
Any Lender may provide to any one or more Eligible Assignees or potential Eligible Assignees any
information, financial statements, data or knowledge such Lender may have about Borrower or about
any other matter relating to the obligations; provided that such Eligible Assignees or potential
Eligible Assignees first agree in writing to be bound by the confidentiality obligations of such
Lender under Section 14.19 of this Agreement. From and after the date on which the conditions
described above have been met, (x) such Eligible Assignee shall be deemed automatically to have
become a party hereto and, to the extent that rights and obligations hereunder have been assigned
and delegated to such Eligible Assignee pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Lender
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hereunder and (y) the assigning Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it pursuant to such Assignment and Acceptance, shall be released
from its obligations hereunder. Within five (5) Business Days after effectiveness of any assignment
and delegation, Borrower shall execute and deliver to Agent (for delivery to the Eligible Assignee
and the assigning Lender, as applicable) a new Note, as applicable, in the principal amount of the
Eligible Assignee’s Pro Rata Share of the Combined Commitments-Revolving Advances, the Combined
Commitments-Acquisition Term Loan or the Real Estate Term Loan, as applicable, and, if the
assigning Lender has retained a Commitment-Revolving Advances, a Commitment-Acquisition Term Loan
or a portion of the Real Estate Term Loan, as applicable, hereunder, a replacement Revolving Credit
Note, Acquisition Term Note or a Real Estate Term Note in the principal amount of the Pro Rata
Share of the Combined Commitments-Revolving Advances, the Combined Commitments-Acquisition Term
Loan or the Real Estate Term Loan, as applicable, retained by the assigning Lender (such Note to be
in exchange for, but not in payment of, the portion of the predecessor Notes not being assigned).
Accrued interest and accrued fees shall be paid at the same time or times provided in the
predecessor Note and in this Agreement. Upon delivery by Borrower of any such new Note in
replacement of an existing Note, the existing Note shall be deemed cancelled and replaced. Any
attempted assignment and delegation not made in accordance with this Section 14.16 shall be null
and void.
Notwithstanding the foregoing provisions of this Section 14.16 or any other provision of this
Agreement, any Lender may at any time assign all or any portion of its Commitment-Revolving
Advances, its Commitment-Acquisition Term Loan or its Pro Rata Share of the Real Estate Term Loan
and its Notes to a Federal Reserve Bank (but no such assignment shall release any Lender from any
of its obligations hereunder).
Section 14.17. USA Patriot Act. Each Lender hereby notifies Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
Borrower, which information includes the name and address of Borrower and other information that
will allow such Lender to identify Borrower in accordance with the Act.
Section 14.18. Foreign Lender Reporting Requirements. If any Lender which is not a Person
organized and existing under the laws of the United States of America or a state thereof (a “Non-US
Person”) becomes a party to this Agreement, such Lender will deliver to Borrower and Agent such
documents and forms related to such status as a Non-US Person as Borrower or Agent may require.
Section 14.19. Confidentiality. Agent and each Lender agree (on behalf of itself and each of
its Affiliates, directors, officers and employees) to use reasonable efforts to keep confidential,
in accordance with customary procedures for handling confidential information of this nature and in
accordance with safe and sound investment practices, any non-public information supplied to it by
or on behalf of any of Borrower, the Subsidiaries, or the other
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Obligated Parties pursuant to this Agreement or any other Loan Document, provided that nothing
herein shall limit the disclosure of any such information (a) to the extent required by statute,
rule, regulation or judicial process, (b) to counsel or any other third party professional
consultants or advisors for any Lender or Agent, (c) to regulatory bodies (including the National
Association of Insurance Commissioners or any similar organization, or any nationally recognized
rating agency that requires access to information about Agent’s or any Lender’s investment
portfolio), auditors or accountants of Agent or any Lender, (d) to Agent or any other Lender or any
Affiliate thereof, (e) in connection with any litigation relating to the transactions contemplated
by this Agreement or any other Loan Document to which any one or more of Agent or any Lender is a
party, or (f) to any assignee or participant (or prospective assignee or participant) or to any
direct or indirect contractual counterparties in swap agreements or to the professional advisors of
such swap counterparties so long as such assignee or participant (or prospective assignee or
participant) or direct or indirect contractual counterparties in swap agreements or such swap
counterparties’ professional advisors agree in writing to be bound by the provisions of this
Section 14.19. Non-public information does not include information that (i) was publicly known
prior to the time of disclosure by Borrower or any of the Subsidiaries or other Obligated Parties,
(ii) after disclosure by Borrower or any of the Subsidiaries or other Obligated Parties to any
Lender or the Agent, becomes publicly known through no act or omission by any Lender or the Agent
or by any Person acting on behalf of any Lender or the Agent or (iii) otherwise becomes known to
any Lender or the Agent other than through disclosure by Borrower or any of the Subsidiaries or
other Obligated Parties.
Section 14.20. Document Imaging. Borrower understands and agrees that (a) Agent’s document
retention policy involves the imaging of executed loan documents and the destruction of the paper
originals, and (b) Borrower waives any right that it may have to claim that the imaged copies of
the Loan Documents are not originals.
Section 14.21. ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS
REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG
THE PARTIES HERETO.
Section 14.22. WAIVER OF TRIAL BY JURY. TO THE FULLEST EXTENT PERMITTED, BY APPLICABLE LAW,
BORROWER, AGENT, ISSUING BANK AND EACH LENDER HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE)
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BETWEEN OR AMONG BORROWER AND AGENT, ISSUING BANK OR ANY LENDER ARISING OUT OF OR IN ANY WAY
RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENTS, OR ANY RELATIONSHIP BETWEEN BORROWER AND
AGENT, ISSUING BANK OR ANY LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDERS TO PROVIDE
THE FINANCING DESCRIBED IN THIS AGREEMENT.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| BORROWER: | ||||||
| ORION MARINE GROUP, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||
| Xxxx X. Xxxxxxxx Chief Financial Officer |
||||||
| Address for Notices: | ||||||
| 00000 Xxxxx Xxxxxxx, Xxxxx 00000 |
||||||
| Fax No.: 000-000-0000 | ||||||
| Email: xxxxxxxxx@xxxxxxxxxxxxxxxx.xxx | ||||||
| with a copy (which shall not constitute notice) to: | ||||||
| Xxxxxx & Xxxxxx L.L.P. | ||||||
| 0000 Xxx Xxxxxxx, Xxxxx 000 | ||||||
| Xxxxxx, Xxxxx 00000 Attention: Xxxx Xxx |
||||||
| Fax No.: 000-000-0000 | ||||||
| Email: xxxx@xxxxx.xxx | ||||||
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| AGENT: | ||||||
| AMEGY BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Xxxx Xxxxxx | ||||||
| Senior Vice President | ||||||
| Address for Notices: | ||||||
| Five Post Oak Park | ||||||
| 0000 Xxxx Xxx Xxxxxxx | ||||||
| Xxxxxxx, Xxxxx 00000 Fax No.: 000-000-0000 |
||||||
| Email: xxxx.xxxxxx@xxxxxxxxx.xxx | ||||||
| LENDERS: | ||||||
| Commitment -
Real Estate Term Loan: $928,500.00 |
AMEGY BANK NATIONAL ASSOCIATION | |||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Xxxx Xxxxxx | ||||||
| Senior Vice President | ||||||
| Address for Notices: | ||||||
| Five Post Oak Park | ||||||
| 0000 Xxxx Xxx Xxxxxxx | ||||||
| Xxxxxxx, Xxxxx 00000 Fax No.: 000-000-0000 |
||||||
| Email: xxxx.xxxxxx@xxxxxxxxx.xxx | ||||||
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| Commitment - | GUARANTY BANK | |||||
| Real Estate Term Loan: $773,750.00 | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Vice President | |||||
| Address for Notices: | ||||||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxx, Xxxxx 00000 Fax No.: | ||||||
| 000-000-0000 | ||||||
| Email: xxxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx | ||||||
| xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx | ||||||
Commitment -
|
WHITNEY NATIONAL BANK | |||||
| Real Estate Term Loan: $464,250.00 | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Xxxxx X. Xxxxxxxx | ||||||
| Vice President | ||||||
| Address for Notices: | ||||||
| River Oaks Branch | ||||||
| 0000 Xxx Xxxxxx, Xxxxx 000 | ||||||
| Fax No.: | ||||||
| Email: xxxxxxxxx@xxxxxxxxxxx.xxx | ||||||
| Commitment - | WACHOVIA BANK, N.A. | |||||
| Real Estate Term Loan: $464,250.00 | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
| Address for Notices: | ||||||
| 0000 Xxxx Xxx Xxxx., Xxxxx 0000 | ||||||
| Xxxxxxx, Xxxxx 00000 | ||||||
| Fax No.: 000-000-0000/000-000-0000 | ||||||
| Email: xxxxxxx.xxxxxxx@xxxxxxxx.xxx | ||||||
-82-
| Commitment -
Real Estate Term Loan: $464,250.00 |
XXXXX FARGO BANK, NATIONAL ASSOCIATION | |||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Vice President | |||||
| Address for Notices: | ||||||
| 0000 Xxxxxxxxx, 0xx Xxxxx | ||||||
| Xxxxxxx, Xxxxx 00000 | ||||||
| Fax No.: 000-000-0000 | ||||||
| Email: xxxxxxxx@xxxxxxxxxx.xxx | ||||||
-83-
LIST OF SCHEDULES
| Schedule 10.11 | Agreements with Affiliates |
-84-
ANNEX “I”
LIST OF COMMITMENT-REVOLVING ADVANCES
July 10, 2007
| Commitment- | ||||||||
| Revolving Advances | ||||||||
| Percentage Share | Amounts as of | |||||||
Name of Lender |
as of July 10, 2007 | July 10, 2007 | ||||||
1. Amegy Bank National
National Association
|
30 | % | $ | 2,550,000.00 | ||||
2. Guaranty Bank
|
25 | % | $ | 2,125,000.00 | ||||
3. Whitney National Bank
|
15 | % | $ | 1,275,000.00 | ||||
4. Wachovia Bank, N.A.
|
15 | % | $ | 1,275,000.00 | ||||
5. Xxxxx Fargo Bank,
National Association
|
15 | % | $ | 1,275,000.00 | ||||
Total
|
100 | % | $ | 8,500,000.00 | ||||
-85-
ANNEX “II”
LIST OF COMMITMENT-ACQUISITION ADVANCES
July 10, 2007
| Commitment- | ||||||||
| Acquisition Advances | ||||||||
| Percentage Share | Amounts as of | |||||||
Name of Lender |
as of July 10, 2007 | July 10, 2007 | ||||||
1. Amegy Bank National
National Association
|
20 | % | $ | 5,000,000.00 | ||||
2. Guaranty Bank
|
20 | % | $ | 5,000,000.00 | ||||
3. Whitney National Bank
|
20 | % | $ | 5,000,000.00 | ||||
4. Wachovia Bank, N.A.
|
20 | % | $ | 5,000,000.00 | ||||
5. Xxxxx Fargo Bank,
National Association
|
20 | % | $ | 5,000,000.00 | ||||
Total
|
100 | % | $ | 25,000,000.00 | ||||
-86-
LIST OF EXHIBITS
| Exhibit | Document | |
A
|
Form of Revolving Credit Note | |
B
|
Copies of Real Estate Term Notes | |
C
|
Form of Acquisition Term Note | |
D
|
Form of Security Agreement-Subsidiary-General | |
E
|
Pledge Agreement-Borrower-Ownership Interests | |
F
|
Pledge Agreement-Borrower-Stock | |
G
|
Form of Pledge Agreement-Subsidiary- Ownership Interests | |
H
|
Form of Pledge Agreement-Subsidiary-Stock | |
I
|
Copy of Deed of Trust-Market Street-First Lien | |
J
|
Deed of Trust-Market Street-Second Lien | |
K
|
Copy of Deed of Trust-Port Lavaca-First Lien | |
L
|
Deed of Trust-Port Lavaca-Second Lien | |
M
|
Mortgage-Florida | |
N
|
Form of Guaranty Agreement | |
O
|
Revolving Advance Request Form | |
P
|
Acquisition Advance Request Form | |
Q
|
Borrowing Base Certificate | |
R
|
No Default Certificate | |
S
|
Assignment and Acceptance | |
T
|
Form of Modification to Real Estate Term Note |
-87-
| Exhibit | Document | |
U
|
Modification to Deed of Trust-Market Street-First Lien | |
V
|
Modification to Deed of Trust-Port Lavaca-First Lien |
-88-
