EXHIBIT 10.19
AMENDMENT NO. 3
TO
LOAN AGREEMENT
AMENDMENT NO. 3 ("Amendment No. 3") dated as of November __, 1999 (the
"Amendment Date") to the Loan Agreement dated as of December 30, 1998, as
amended (the "Loan Agreement"), among HORIZON VESSELS, INC., a Delaware
corporation, HORIZON OFFSHORE CONTRACTORS, INC., a Delaware corporation
(together, the "Borrowers"), HORIZON OFFSHORE, INC., a Delaware corporation
(the "Guarantor"), THE CIT GROUP/EQUIPMENT FINANCING, INC., a New York
corporation ("CIT"), XXXXXX FINANCIAL LEASING, INC., a Delaware corporation,
U.S. BANCORP LEASING & FINANCIAL, an Oregon corporation, SAFECO CREDIT
COMPANY, INC., a Washington corporation, TRANSAMERICA EQUIPMENT FINANCIAL
SERVICE CORPORATION, a Delaware corporation, and PHOENIXCOR, INC., a Delaware
corporation (collectively, the "Original Lenders") and CIT as Agent for the
Original Lenders (the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Loan Agreement, the Original Lenders made
available to the Borrowers a loan facility of up to USD 73,800,000, as evidenced
by the amended and restated secured promissory note of the Borrowers dated
January 30, 1999; and
WHEREAS, the Borrowers wish to acquire the United States flag vessel
ATLANTIC HORIZON (the "New Vessel"); and
WHEREAS, the Borrowers have requested that the loan facility be increased
up to a maximum amount of USD 83,300,000; and
WHEREAS, Deutsche Financial Services Corporation, a Nevada corporation
(the "New Lender", and together with the Original Lenders, the "Lenders") wishes
to subscribe to that portion of the Commitment equal to USD 10,000,000; and
WHEREAS, the parties wish to amend the Loan Agreement to reflect the
foregoing and to amend certain provisions thereof.
NOW THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree to amend the Loan Agreement as follows:
1. The Definitions of the Loan Agreement are hereby amended as
follows:
(a) Each reference in the Loan Agreement to "Lenders" is hereby
amended to include the New Lender.
(b) Each reference in the Loan Agreement to "Amendment
Documents" is hereby amended to include the Amendment Documents listed
in Section 4.1 of this Amendment No. 3.
(c) Each reference in the Loan Agreement to the Note shall refer to
the Amended and Restated Promissory Note dated the date hereof by the
Borrowers in favor of the Agent.
(d) The definition of "Commitment" is hereby amended to read as
follows:
"Commitment" means USD 83,300,000.
2. Section 1.3(a) of the Loan Agreement is hereby amended to read as
follows:
"(a) The Borrowers shall jointly and severally repay the principal amount
of the first Advance in eighty-four (84) consecutive monthly
installments of USD 462,963, the amount of the second Advance in
eighty-four (84) consecutive monthly installments of USD 46,296, the
amount of the third Advance in eighty-four (84) consecutive monthly
installments of USD 127,778, and the amount of the fourth Advance in
seventy-three (73) consecutive monthly installments of USD 154,490,
with each such installment to be paid by the Borrowers to the Agent
on a date commencing on the day which is thirty (30) days after the
date of such Advance, and on the same day of each month thereafter
and ending on the Maturity Date (each such date a "Payment Date");
provided, however, that the final installment for each Advance shall
be in an amount sufficient to repay all amounts of principal for
such Advance and, provided further, that the final payment on the
Maturity Date shall be in an amount sufficient to discharge the
accrued and unpaid interest and principal in respect of the Note."
3. The final clause of Article IV of the Loan Agreement (immediately
following Article IV(f)) is hereby amended to read as follows:
"then the Agent may by written notice to the Borrowers (1)
immediately terminate the commitment of the Lenders hereunder;
(2)declare the principal of, and interest accrued to the date of
such declaration on, the Note together with all other amounts due
hereunder or under any of the Loan Documents, to be forthwith due
and payable, whereupon the same shall become forthwith due and
payable (PROVIDED, HOWEVER, no notice or declaration shall be
required and such amounts shall be immediately due and payable upon
the occurrence of an event described
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in Article IV(e)(ii) or (iii) hereof) and (3) exercise any remedies
to which it may be entitled by any Loan Document or by applicable
law."
4. Schedule 1 to the Loan Agreement is hereby replaced with Schedule
1 attached to this Amendment No. 3.
4. CONDITIONS PRECEDENT.
4.1 DOCUMENTS REQUIRED AS CONDITIONS PRECEDENT TO AMENDMENT NO. 3. The
effectiveness of the modifications to the Loan Agreement contemplated by this
Amendment No. 3 is subject to the condition precedent that the Agent shall have
received at or prior to the Amendment Date all of the following, each dated on
or before the Amendment Date and each in form and substance satisfactory to the
Agent and its counsel:
(a) Each of the following documents (the "Amendment Documents")
shall have been duly authorized and executed with original counterparts
thereof delivered to the Agent:
(i) This Amendment No. 3;
(ii) Amended and Restated Promissory Note;
(iii) Amendment No. 3 to the United States First Preferred
Fleet Mortgage;
(iv) Amendment No. 3 to Vanuatu First Preferred Fleet
Mortgage;
(v) Ratification of Guaranty executed by the Guarantor;
(vi) Amendment and Ratification of Security Agreement;
(vii) Ratification of Intercreditor Agreement;
(viii) Amendment No. 2 to Deed of Covenants; and
(ix) such further documents as the Lenders may reasonably
request.
(b) The representations and warranties contained in Section 3.1 of
the Loan Agreement shall be true on the Amendment Date with the same
effect as though such representations and warranties had been made on and
as of such date, and no Event of Default specified in Article IV of the
Loan Agreement and no event which, with the lapse of time or the giving of
notice and the lapse of time specified in Article IV of the Loan
EXHIBIT 10.19
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Agreement, would become such an Event of Default, shall have occurred and
be continuing.
4.2 WAIVER OF CONDITIONS PRECEDENT. All of the conditions precedent
contained in this Section 4 are for the sole benefit of the Agent and the
Lenders and the Agent may waive any of them in its absolute discretion, and on
such conditions as it deems proper.
5. REPRESENTATIONS OF THE BORROWERS AND GUARANTOR. The Borrowers
and the Guarantor represent and warrant that:
(a) Each of the Borrowers and the Guarantor is a corporation, duly
organized and validly existing in good standing under the laws of the
State of Delaware, and has the requisite power and authority (i) to carry
on its business as presently conducted; and (ii) to enter into and perform
its obligations under the Amendment Documents.
(b) The execution, delivery and performance by each of the Borrowers
and the Guarantor of the Amendment Documents and any other instrument or
agreement provided for by this Amendment No. 3 to which it is a party,
have been duly authorized by all necessary corporate action, do not
require stockholder approval other than such as has been duly obtained or
given, do not or will not contravene any of the terms of its Certificate
of Incorporation or Bylaws, and will not violate any provision of law or
of any order of any court or governmental agency or constitute (with or
without notice or lapse of time or both) a default under, or result
(except as contemplated by this Amendment No. 3) in the creation of any
security interests, lien, charge or encumbrance upon any of its properties
or assets pursuant to, any agreement, indenture or other instrument to
which it is a party or by which it may be bound other than is in favor of
the Agent; the Amendment Documents have been duly executed and delivered
by the Borrowers and the Guarantor and constitute the respective legal,
valid and binding agreements, enforceable in accordance with the
respective terms thereof as to which each of the Borrowers and the
Guarantor is a party. The enforceability of this Amendment No. 3, however,
is subject to all applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting the rights or creditors and to
general equity principles.
(c) Except as set forth in the Loan Agreement, there are no suits or
proceedings pending or to its knowledge threatened against or affecting
any Borrower or Guarantor which if adversely determined would have a
material adverse effect upon its business, financial condition or
operations.
(d) Other than such as have been obtained, no license, consent or
approval of any Governmental Agency or other regulatory authority is
required for the execution, delivery or performance of this Amendment No.
3 or any other Amendment Document or any instrument contemplated herein or
therein. The Borrowers are the holder of all
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certificates and authorizations of governmental authorities required by
law to enable it to engage in the business transacted by them.
6. EXPENSES. The Borrowers and the Guarantor agree to promptly, whether or
not the modifications to the Loan Agreement contemplated by this Amendment No. 3
become effective, (x) reimburse the Agent for all fees and disbursements of
external counsel to the Agent and all reasonable out of pocket fees and
disbursements of the Agent incurred in connection with the preparation,
execution and delivery of this Amendment No. 3 and all other documents referred
to herein, and all amendments or waivers to or termination of this Amendment No.
3 or any agreement referred to herein; and (y) reimburse the Agent for all fees
and disbursements of internal and external counsel to the Agent and all
reasonable out of pocket fees, disbursements and travel-related expenses of the
Agent incurred in connection with the protection of the rights of the Agent
under this Amendment No. 3 and all other documents referred to herein, whether
by judicial proceedings or otherwise. The obligations of the Borrowers and the
Guarantor under this Section 6 shall survive payment of the Loan.
7. Wherever and in each such place the term "Loan Agreement" is used
throughout the Loan Agreement, such term shall be read to mean the Loan
Agreement as amended by this Amendment No. 3.
8. Except as specifically amended by this Amendment No. 3, all of
the terms and provisions of the Loan Agreement shall remain in full force and
effect.
9. All capitalized terms used herein but not defined herein shall have the
meanings given to them in the Loan Agreement.
10. THIS AMENDMENT NO. 3 TO LOAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
No. 3 to Loan Agreement on the date first written above.
BORROWERS:
HORIZON OFFSHORE CONTRACTORS, INC.
By:____
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Name:__
Title:_
HORIZON VESSELS, INC.
By:____
Name:__
Title:_
GUARANTOR:
HORIZON OFFSHORE, INC.
By:____
Name:__
Title:_
LENDERS:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:____
Name:__
Title:_
SAFECO CREDIT COMPANY, INC.
By:____
Name:__
Title:_
U.S. BANCORP LEASING & FINANCIAL
EXHIBIT 10.19
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By:____
Name:__
Title:_
XXXXXX FINANCIAL LEASING, INC.
By:____
Name:__
Title:_
TRANSAMERICA EQUIPMENT FINANCIAL SERVICE
CORPORATION
By:____
Name:__
Title:_
PHOENIXCOR, INC.
By:____
Name:__
Title:_
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:____
Name:__
Title:_
AGENT:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:____
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Name:__
Title:_
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SCHEDULE 1 TO
LOAN AGREEMENT
LENDER PORTION OF COMMITMENT
1. The CIT Group/Equipment
Financing, Inc. USD 23,300,000
2. Xxxxxx Financial
Leasing, Inc. USD 15,000,000
3. TransAmerica Equipment
Financial Service Corp. USD 15,000,000
4. U. S. Bancorp Leasing
& Financial USD 10,000,000
5. Safeco Credit Company,
Inc. USD 5,000,000
6. Phoenixcor, Inc. USD 5,000,000
7. Deutsche Financial Services
Corporation USD 10,000,000
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