Contract
EXECUTION VERSION
DMSLIBRARY01\30849741.v4
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”),
is made and entered into as of July 28, 2017, by and among ORION GROUP HOLDINGS,
INC., a Delaware corporation (formerly known as Orion Marine Group, Inc.) (the “Borrower”),
certain Subsidiaries of the Borrower designated as “Guarantors” on the signature pages hereof
(together with the Borrower, the “Credit Parties”), the Lenders (as defined below) party hereto
constituting the Required Lenders (as defined in the Credit Agreement as defined below), and
REGIONS BANK, as administrative agent and collateral agent for the Lenders (in such
capacity, the “Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, certain banks and other financial institutions
from time to time party thereto (the “Lenders”) and the Agent are parties to a certain Credit
Agreement, dated as of August 5, 2015 (as amended by that certain First Amendment to Credit
Agreement, dated as of April 27, 2016, and as further amended, restated, supplemented,
increased, extended or otherwise modified from time to time, the “Credit Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement), pursuant to which the Lenders have made loans and certain other
financial accommodations available to the Borrower; and
WHEREAS, the Borrower has requested that the Required Lenders and the Agent amend
certain provisions of the Credit Agreement, and, in each case, subject to the terms and conditions
hereof, the Required Lenders and the Agent are willing to do so.
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt
of which are acknowledged, the Borrower, the Guarantors, the Required Lenders and the Agent
agree as follows:
1. Amendments.
(a) Section 8.1 of the Credit Agreement is amended by amending and
restating clause (j) thereof in its entirety as follows (with all changes indicated textually
with italics):
(j) unsecured Indebtedness of the Credit Parties in an aggregate
amount not to exceed at any time $15,000,000; and
(b) Section 8.8 of the Credit Agreement is amended by amending and
restating clause (a) thereof in its entirety as follows (with all changes indicated textually
with italics):
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any Fiscal Quarter of the Borrower (i) occurring during the
period from the Closing Date through and including December 31, 2015, to
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exceed 3.25 to 1.00 and (ii) thereafter, to exceed the correlative ratio set forth
below:
Fiscal Quarter Ending Consolidated Leverage Ratio
March 31, 2016 4.00 to 1.00
June 30, 2016 3.75 to 1.00
September 30, 2016 3.25 to 1.00
December 31, 2016 3.00 to 1.00
March 31, 2017 2.75 to 1.00
June 30, 2017 2.75 to 1.00
September 30, 2017 2.75 to 1.00
December 31, 2017 and each Fiscal
Quarter thereafter
2.50 to 1.00
(c) Exhibit 7.1(c) to the Credit Agreement is amended and restated in its
entirety as set forth on Annex A attached hereto.
2. Conditions Precedent. Completion of the following to the satisfaction of the
Agent and the Required Lenders shall constitute express conditions precedent to the
effectiveness of the amendments set forth in this Amendment (and the date on which all of the
foregoing shall have occurred as determined by the Agent being called herein the “Second
Amendment Effective Date”):
(a) Executed Credit Documents. Delivery of duly executed counterparts of this
Amendment in form and substance satisfactory to the Agent and the Required Lenders; and
(b) Fees and Expenses. The Agent shall have confirmation that all fees and expenses
required to be paid on or before the Second Amendment Effective Date have been paid,
including the fees and expenses of King & Spalding LLP.
3. Representations and Warranties. As of the Second Amendment Effective Date,
after giving effect to this Amendment, the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are true and correct in all material respects (or,
with respect to any such representation or warranty that is modified by materiality or Material
Adverse Effect, are true and correct in all respects) on and as of the Second Amendment
Effective Date, except to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date, and no event has occurred and is continuing
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or would result from the consummation of this Amendment and the transactions contemplated
hereby that would constitute an Event of Default or a Default.
4. Reaffirmation of Credit Party Obligations. Each Credit Party hereby ratifies
the Credit Agreement, as amended hereby, and each other Credit Document to which it is a party
and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement, as
amended hereby, and such other Credit Documents applicable to it and (b) that it is responsible
for the observance and full performance of its respective Obligations.
5. Release of Claims and Covenant Not to Xxx.
(a) On the Second Amendment Effective Date, in consideration of the Required
Lenders’ and the Agent’s agreements contained in this Amendment, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each
Credit Party, on behalf of itself and its successors and assigns, and its present and former
members, managers, shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents, legal representatives, and other representatives (each
Credit Party and all such other Persons being hereinafter referred to collectively as the
“Releasing Parties” and individually as a “Releasing Party”), hereby absolutely, unconditionally,
and irrevocably releases, remises, and forever discharges Agent, each Lender, and each of their
respective successors and assigns, and their respective present and former shareholders,
members, managers, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents, legal representatives, and other representatives (Agent, Lenders, and all such
other Persons being hereinafter referred to collectively as the “Releasees” and individually as a
“Releasee”), of and from any and all demands, actions, causes of action, suits, damages, and any
and all other claims, counterclaims, defenses, rights of set-off, demands, and liabilities
whatsoever (individually, a “Claim” and collectively, “Claims”) of every kind and nature, known
or unknown, suspected or unsuspected, at law or in equity, which any Releasing Party or any of
its successors, assigns, or other legal representatives may now or hereafter own, hold, have, or
claim to have against the Releasees or any of them for, upon, or by reason of any circumstance,
action, cause, or thing whatsoever which arises at any time on or prior to the date of this
Amendment for or on account of, in relation to, or in any way in connection with this
Amendment, the Credit Agreement, any of the other Credit Documents, or any of the
transactions hereunder or thereunder.
(b) Each Credit Party understands, acknowledges, and agrees that the release set forth
above may be pleaded as a full and complete defense to any Claim and may be used as a basis
for an injunction against any action, suit, or other proceeding which may be instituted,
prosecuted, or attempted in breach of the provisions of such release.
(c) Each Credit Party agrees that no fact, event, circumstance, evidence, or
transaction which could now be asserted or which may hereafter be discovered will affect in any
manner the final, absolute, and unconditional nature of the release set forth above.
(d) On and after the Second Amendment Effective Date, each Credit Party hereby
absolutely, unconditionally and irrevocably covenants and agrees with and in favor of each
Releasee that it will not xxx (at law, in equity, in any regulatory proceeding, or otherwise) any
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Releasee on the basis of any Claim released, remised, and discharged by any Credit Party
pursuant to clause (a) of this Section. If any Credit Party violates the foregoing covenant, the
Borrower, for itself and its successors and assigns, and its present and former members,
managers, shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents, legal representatives, and other representatives, agrees to pay, in
addition to such other damages as any Releasee may sustain as a result of such violation, all
attorneys’ fees and costs incurred by any Releasee as a result of such violation.
6. Effect of Amendment. Except as set forth expressly herein, all terms of the
Credit Agreement, as amended hereby, and the other Credit Documents shall be and remain in
full force and effect and shall constitute the legal, valid, binding and enforceable obligations of
the Borrower to the Lenders and the Agent. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders under the Credit Agreement or the other Credit Documents, nor
constitute a waiver of any provision of the Credit Agreement or the other Credit Documents.
This Amendment shall constitute a Credit Document for all purposes of the Credit Agreement.
7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
8. No Novation. This Amendment is not intended by the parties to be, and shall not
be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard
thereto.
9. Counterparts. This Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, each of which shall be deemed an original and all
of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of
an executed counterpart of this Amendment by facsimile transmission or by electronic mail in
pdf form shall be as effective as delivery of a manually executed counterpart hereof.
10. Binding Nature. This Amendment shall be binding upon and inure to the benefit
of the parties hereto, their respective successors, successors-in-titles, and assigns.
11. Entire Understanding. This Amendment sets forth the entire understanding of
the parties with respect to the matters set forth herein, and shall supersede any prior negotiations
or agreements, whether written or oral, with respect thereto.
[Signature Pages To Follow]
ANNEX A
Exhibit 7.1(c) to Credit Agreement
[Attached]
30857720.v2
Exhibit 7.1(c)
[Form of] Compliance Certificate
Financial Statement Date: __________, 20___
To: Regions Bank, as Administrative Agent
Re: Credit Agreement dated as of August 5, 2015 (as amended, restated, supplemented, increased,
extended, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Orion Marine Group, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries
of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time
party thereto and Regions Bank, as Administrative Agent and Collateral Agent. Capitalized
terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby certifies as of the date hereof that [he/she] is the ____________ of the Borrower,
and that, in [his/her] capacity as such, [he/she] is authorized to execute and deliver this certificate
(including the schedules attached hereto and made a party hereof, this “Compliance Certificate”) to the
Administrative Agent on behalf of the Borrower, and that:
[Use following paragraph 1 for Fiscal Year-end financial statements:]
[1. Attached hereto as Schedule 1 are the year-end audited consolidated financial statements required
by Section 7.1(b) of the Credit Agreement for the Fiscal Year of the Borrower ended as of the above date,
together with the report and opinion of an independent certified public accountant of recognized national
standing required by such section. Such financial statements fairly present, in all material respects, the
consolidated financial position of the Borrower and its Subsidiaries as at the date indicated and the results
of their operations and their cash flows for the period indicated.]
[Use following paragraph 1 for Fiscal Quarter-end financial statements:]
[1. Attached hereto as Schedule 1 are the unaudited consolidated financial statements required by
Section 7.1(a) of the Credit Agreement for the Fiscal Quarter of the Borrower ended as of the above date.
Such financial statements fairly present, in all material respects, the financial condition of consolidated
financial position of the Borrower and its Subsidiaries as at the date indicated and the results of their
operations and their cash flows for the period indicated, subject to changes resulting from audit and
normal year end adjustments.]
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made, a detailed review of the transactions and financial condition of the
Borrower and its Subsidiaries during the accounting period covered by the attached financial statements.
3. A review of the activities of the Borrower and its Subsidiaries during such fiscal period has been
made under the supervision of the undersigned with a view to determining whether a Default or Event of
Default exists, and
[select one:]
[to the knowledge of the undersigned during such fiscal period, no Default or Event of Default exists as of
the date hereof.]
[or:]
[the following is a list of each Default or Event of Default, the nature and extent thereof and proposed
actions with respect thereto:]
4. The financial covenant analyses and calculations for the periods identified therein of the
Consolidated Fixed Charges, Consolidated Leverage Ratio (used in the determination of the Applicable
Margin), Consolidated Fixed Charge Coverage Ratio, and Consolidated Capital Expenditures are set forth
on Schedule 2 attached hereto. In the event of any conflict between the formulas used for such analyses
and calculations provided in the attached Schedule 2 and the formulas provided in the Credit Agreement,
the Credit Agreement shall govern.
5. Set forth on Schedule 3 is a summary of all material changes in GAAP and in the consistent
application thereof, unless such change and the effects thereof have been described in a previous
Compliance Certificate, the effect on the financial covenants resulting therefrom, and a reconciliation
between calculation of the financial covenants before and after giving effect to such changes.
[Signature on Following Page]
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of
__________, 20___.
ORION MARINE GROUP, INC.
By:
Name:
Title:
Schedule 1
to Compliance Certificate
For the Fiscal [Quarter] [Year] ending __________ ___, 20___.
Financial Statements
(see attached)
Schedule 2
to Compliance Certificate
For the Fiscal [Quarter] [Year] ending __________ ___, 20___.
Covenant Calculations
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement. In the event of any conflict between the formulas used for such analyses and calculations
provided in this Schedule 2 and the formulas provided in the Credit Agreement, the Credit Agreement
shall govern.
Consolidated EBITDA
Consolidated EBITDA
Consolidated Net Income $________
+ Consolidated Interest Charges $________
+ the provision for federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period
$________
+ depreciation expense $________
+ amortization expense $________
+ all non-cash expenses, charges and losses (or minus any non-cash
gains) for such period (excluding those expenses, charges and
losses related to accounts receivable) so long such expenses,
charges and losses are not expected to be paid in cash at any time in
the future
= Consolidated EBITDA $________
Consolidated Fixed Charges
Consolidated Fixed Charges
cash portion of Consolidated Interest Charges $________
+ Consolidated Scheduled Funded Debt Payments $________
+ Restricted Payments made during such period, all as determined
in accordance with GAAP
= Consolidated Fixed Charges $________
Consolidated Leverage Ratio
A. Consolidated Funded Debt: $
B. Consolidated EBITDA: $
C. Consolidated Leverage Ratio (Line A Line B): to 1.00
Consolidated Fixed Charge Coverage Ratio
A. Consolidated EBITDA: $
i. minus Consolidated Taxes $
ii. minus Consolidated Maintenance Capital Expenditures $
B. Consolidated Fixed Charges: $
E. Consolidated Fixed Charge Coverage Ratio
(Line A minus lines i and ii Line B): to 1.00
Consolidated Capital Expenditures
Consolidated Capital Expenditures: $
Schedule 3
to Compliance Certificate
For the Fiscal [Quarter] [Year] ending __________ ___, 20___.
Changes in GAAP
(see attached)
