Exhibit 10.49
LOAN AGREEMENT
(Amended and Restated)
June 29, 2001
Horizon Vessels, Inc.
Horizon Offshore, Inc., and
Horizon Offshore Contractors, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
RE: Loans by SouthTrust Bank to Horizon Vessels, Inc., a Delaware Corporation,
Horizon Offshore, Inc., a Delaware Corporation and Horizon Offshore Contractors,
Inc., a Delaware Corporation, in the original principal amount of $6,000,000.00,
dated June 29, 2001, and in the original principal amount of $1,680,000.00 dated
August 31, 2001, secured respectively by Deeds of Trust dated June 29, 2001 and
August 31, 2001, and recorded in the Official Public Records of Real Property of
Jefferson County, Texas under File No. 2001024037 and 2001032447.
This amended and restated Loan Agreement (the "Loan Agreement") sets forth
the revised terms of certain financing transactions between Horizon Vessels,
Inc., a Delaware Corporation, Horizon Offshore, Inc., a Delaware Corporation and
Horizon Offshore Contractors, Inc., a Delaware Corporation (referred to, jointly
and severally, as "Borrower"), and SouthTrust Bank (the "Bank"):
1. LOAN. The Bank has made to Borrower a loan in a separate, single advance on
June 29, 2001 (the "Effective Date") for $6,000,000 subject to the provisions of
a Loan Agreement dated effective on the Effective Date (the "$6,000,000 Loan").
In addition on August 31, 2001, the Bank made to Borrower a loan in a separate,
single advance of $1,680,000 (the "$1,680,000 Loan"). The $6,000,000 Loan and
the $1,680,000 Loan are collectively referred to as the "Loans."and both of the
Loans are secured by certain real property and personal property (the "Real and
Personal Property") described in the Deeds of Trust (with combined Security
Agreements) identified above. The purposes of this amended and restated Loan
Agreement is to revise and restate the terms of the Loan Agreement and to
expressly include the $1,680,000 Loan under the Loan Agreement. The
modifications made pursuant to this amended and restated Loan Agreement are
expressly conditioned on the execution of the 2004 Subordinated Notes (defined
below) and on the funding of the loans evidenced by the 2004 Subordinated Notes.
The original Loan Agreement and this amended and restated Loan Agreement, and
the other agreements, instruments and documents evidencing, securing, governing,
guaranteeing and/or pertaining to either of the Loans (including both the
$6,000,000 Loan and the $1,680,000 Loan), as defined
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either in this amended and restated Loan Agreement or in the original Loan
Agreement are collectively referred to as the "Loan Documents". All references
in any Loan Document to the "Loan Agreement" shall be deemed to refer to
original Loan Agreement for any act, omission, occurrence, event, or default
during any period from the Effective Date to March ___, 2004, the date of this
amended and restated Loan Agreement and shall be deemed to refer to this amended
and restated Loan Agreement for any act, omission, occurrence, event, or default
commencing on March ____, 2004, the date of this Amended and restated Loan
Agreement. Notwithstanding anything to the contrary in the Loan Documents, the
Bank hereby consents to Horizon Vessels, Inc. granting a mortgage to Xxxxxxx
Associates, L.P. in the Real and Personal Property securing the 2004
Subordinated Notes, that shall be inferior to the Deeds of Trust in favor of the
Bank.
2. PROMISSORY NOTES. The Loans shall be evidenced by one or more promissory
notes (whether one or more, together with any renewals, extensions and
increases thereof, the "Notes") duly executed by Borrower and payable to
the order of Bank, in form and substance acceptable to Bank. Interest on
the Notes shall accrue at the rate(s) determined under the Notes. Principal
and interest on the Notes shall be due and payable in accordance with the
provisions set forth in the Notes and in this Loan Agreement.
3. COLLATERAL. As collateral and security for the indebtedness evidenced by
the Notes and any and all other indebtedness or obligations from time to
time owing by Borrower to Bank, Borrower shall grant, and hereby grants, to
Bank, its successors and assigns, a first and prior lien and security
interest in and to the property described below, together with any and all
PRODUCTS AND PROCEEDS thereof (the "Collateral"):
a. Being 21.2284 acres of land, more or less, being all of Tracts No.
8, 9, 10, 11 and 12, out of what is commonly referred to as Pleasure
Islet and being out of that certain 92.563 acre tract of land
heretofore conveyed unto Pleasure Islet Associates duly authorized by
resolution No. 81-188 dated July 13, 1981 of the City Council of the
City of Port Xxxxxx and being out of that certain 1,877.94 acre tract
of land heretofore conveyed to the City of Port Xxxxxx, Texas, by the
State of Texas by patent as recorded in Vol 1014, Page 000, Xxxx
Xxxxxxx xx Xxxxxxxxx Xxxxxx, Xxxxx; said 21.2284 acre tract being all
of Tract Nos. 8, 9, 10, 11 and 12 that was conveyed to Coastal Marine
Service of Texas, Inc. by Xxx Xxxxx on October 4, 1994 by Special
Warranty Deed and recorded in County Clerk's File No. 9432540 Official
Public Records of Real Property of Jefferson County, Texas, together
with all improvements, fixtures, equipment and other appurtenances
attached thereto, more particularly described in the Deed of Trust
executed in connection with the Loan Agreement, such real property
being more particularly described in the Deed of Trust recorded under
File No. 2001024037 of the Official Public Records of Real Property of
Jefferson County, Texas, and in the Deed of Trust recorded under File
No. 2001032447 of the Official Public Records of Real Property of
Jefferson County, Texas..
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b. All equipment and fixtures of whatsoever kind and character now or
hereafter possessed, held, acquired, leased or owned by Borrower and
used or usable in Borrower's business, located at or on the real
property subject to such Deed of Trust identified above, together with
all replacements, accessories, additions, substitutions and accessions
to all of the foregoing.
The term "Collateral" shall also include all records and data relating to
any of the foregoing (including, without limitation, any computer software
on which such records and data may be located). Borrower agrees to execute
such security agreements, assignments, deeds of trust and other agreements
and documents as Bank shall deem appropriate and otherwise require from
time to time to more fully create and perfect Bank's lien and security
interests in the Collateral.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants,
and upon each request for an advance under the Loan, further represents and
warrants, to Bank as follows:
a. Existence. Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and all
other states where it is doing business, and has all requisite power
and authority to execute and deliver the Loan Documents.
b. Binding Obligations. The execution, delivery, and performance of this
Loan Agreement and all of the other Loan Documents by Borrower have
been duly authorized by all necessary action by Borrower, and
constitute legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as
limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and
except to the extent specific remedies may generally be limited by
equitable principles.
c. No Consent. The execution, delivery and performance of this Loan
Agreement and the other Loan Documents, and the consummation of the
transactions contemplated hereby and thereby, do not (i) conflict
with, result in a violation of, or constitute a default under (A) any
provision of its articles or certificate of incorporation or bylaws,
if Borrower is a corporation, or its partnership agreement, if
Borrower is a partnership, or any agreement or other instrument
binding upon Borrower, or (B) any law, governmental regulation, court
decree or order applicable to Borrower, or (ii) require the consent,
approval or authorization of any third party.
d. Financial Condition. Each financial statement of Borrower supplied to
the Bank truly discloses and fairly presents Borrower's financial
condition as of the date of each such statement. There has been no
material adverse change in such financial
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condition or results of operations of Borrower subsequent to the date
of the most recent financial statement supplied to the Bank.
e. Litigation. There are no actions, suits or proceedings, pending or, to
the knowledge of Borrower, threatened against or affecting Borrower or
the properties of Borrower, before any court or governmental
department, commission or board, which, if determined adversely to
Borrower, would have a material adverse effect on the financial
condition, properties, or operations of Borrower.
f. Taxes; Governmental Charges. Borrower has filed all federal, state and
local tax reports and returns required by any law or regulation to be
filed by it and has either duly paid all taxes, duties and charges
indicated due on the basis of such returns and reports, or made
adequate provision for the payment thereof, and the assessment of any
material amount of additional taxes in excess of those paid and
reported is not reasonably expected.
5. AFFIRMATIVE COVENANTS. Until (i) the Notes and all other obligations and
liabilities of Borrower under this Loan Agreement and the other Loan
Documents are fully paid and satisfied, and (ii) the Bank has no further
commitment to lend hereunder, Borrower agrees and covenants that it will,
unless Bank shall otherwise consent in writing:
a. Accounts and Records. Maintain its books and records in accordance
with generally accepted accounting principles.
b. Right of Inspection. Permit Bank to visit its properties and
installations and to examine, audit and make and take away copies or
reproductions of Borrower's books and records, at all reasonable
times.
c. Right to Additional Information. Furnish Bank with such additional
information and statements, lists of assets and liabilities, tax
returns, and other reports with respect to Borrower's financial
condition and business operations as Bank may request from time to
time.
d. Compliance with Laws. Conduct its business in an orderly and efficient
manner consistent with good business practices, and perform and comply
with all statutes, rules, regulations and/or ordinances imposed by any
governmental unit upon Borrower its businesses, operations and
properties (including without limitation, all applicable environmental
statutes, rules, regulations and ordinances).
e. Taxes. Pay and discharge when due all of its indebtedness and
obligations, including without limitation, all assessments, taxes,
governmental charges, levies and liens, of every kind and nature,
imposed upon Borrower or its properties, income, or profits, prior to
the date on which penalties would attach, and all
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lawful claims that, if unpaid, might become a lien or charge upon any
of Borrower's properties, income, or profits; provided, however,
Borrower will not be required to pay and discharge any such
assessment, tax, charge, xxxx, xxxx or claim so long as (i) the
legality of the same shall be contested in good faith by appropriate
judicial, administrative or other legal proceedings, and (ii) Borrower
shall have established on its books adequate reserves with respect to
such contested assessment, tax, charge, xxxx, xxxx or claim in
accordance with generally accepted accounting principles, consistently
applied.
f. Insurance. Maintain insurance, including but not limited to, fire
insurance, comprehensive property damage, public liability, worker's
compensation, business interruption and other insurance deemed
necessary or otherwise required by Bank.
g. Notice of Indebtedness. Promptly inform Bank of the creation,
incurrence or assumption by Borrower of any actual or contingent
liabilities not permitted under this Loan Agreement.
h. Notice of Litigation. Promptly after the commencement thereof, notify
Bank of all actions, suits and proceedings before any court or any
governmental department, commission or board affecting Borrower or any
of its properties.
i. Notice of Material Adverse Change. Promptly inform Bank of (i) any and
all material adverse changes in Borrower's financial condition, and
(ii) all claims made against Borrower which could materially affect
the financial condition of Borrower.
j. Additional Documentation. Execute and deliver, or cause to be executed
and delivered, any and all other agreements, instruments or documents
which Bank may reasonably request in order to give effect to the
transactions contemplated under this Loan Agreement and the other Loan
Documents.
6. NEGATIVE COVENANTS. Until (i) the Notes and all other obligations and
liabilities of Borrower under this Loan Agreement and the other Loan
Documents are fully paid and satisfied, and (ii) the Bank has no further
commitment to lend hereunder, Borrower will not, without the prior written
consent of Bank make any material change in the nature of its business as
carried on as of the Effective Date and will not violate or fail to comply
with any covenants or agreements regarding other debt which will or would
with the passage of time or upon demand cause the maturity of any other
debt to be accelerated.
7. FINANCIAL COVENANTS. Unless otherwise specified, all accounting and
financial terms and covenants set forth in this agreement are to be
determined according to generally accepted accounting principles,
consistently applied. Until (i) the Notes and all other obligations and
liabilities of Borrower under this Loan Agreement and the other Loan
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Documents are fully paid and satisfied, and (ii) the Bank has no further
commitment to lend hereunder, Borrower will maintain the following
financial covenants:
a. During the period from the Date of the Note to December 31, 2003, the
following subsections 1 - 6 shall apply:
1. Working Capital. Borrower will maintain, at all times, its
current assets (excluding prepaid expenses), less its current
liabilities at an amount not less than $10,000,000.00.
2. Current Ratio. Borrower will maintain, at all times, a ratio of
(a) current assets (excluding prepaid expenses), to (b) current
liabilities of not less than 1.0 to 1.0.
3. Tangible Net Worth. Borrower will maintain, at all times, its
Tangible Net Worth at not less than $125,000,000.00.
4. Liabilities/Tangible Net Worth. Borrower will maintain, at all
times, a ratio of (a) total liabilities to (b) Tangible Net Worth
of not greater than 1.5 to 1.0.
5. Debt Service. Borrower will maintain, as of the last day of each
fiscal year, a ratio of (a) net income after taxes plus
depreciation, amortization and other non-cash expenses for the 12
month period ending with such fiscal year, less any Distributions
during such 12 month period to (b) current maturities of
long-term debt and long-term leases for such 12 month period, of
not less than 1.3 to 1.0.
6. EBIDA. Borrower will not permit the ration of its funded debt to
EBIDA to exceed 3.6x.
b. Except for subsection 4, which will apply from December 31, 2003
through December 31, 2004 only, during the period from December 31,
2003 through maturity of the Notes, the following subsections 1 - 17
shall apply:
1. Current Ratio. Borrower will maintain, at all times, a CURRENT
RATIO of not less than the amount required by the following
schedule:
A. .90x, during each of the fiscal quarters ending on
March 31, 2004, and ending on June 30, 2004;
B. 1.05x, during the fiscal quarter ending September
30, 2004;
C. 1.10x, during the fiscal quarter ending December 31,
2004;
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D. 1.0x, for all fiscal quarters beginning after
December 31, 2004.
The Current 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, 2004
2. Minimum Tangible Net Worth. Borrower will at all times maintain
Tangible Net Worth in an amount not less than the sum of (a)
$110,000,000.00, plus (b) seventy-five percent (75%) of Net
Income for each fiscal quarter of the Company and its
Subsidiaries which has been completed as of the date of
calculation, commencing with the fiscal quarter ending March 31,
2004, provided, however, that in the event that Net Income of the
Company and its Subsidiaries is not greater than zero for any
fiscal quarter, an amount equal to zero shall be added to the
calculation of Tangible Net Worth for such fiscal quarter, plus
(c) ninety percent (90%) of the net proceeds of any common stock
or other equity issued by the Company or any of its Subsidiaries
(on a consolidated basis) after December 31, 2003. Tangible Net
Worth shall be calculated and tested quarterly as of the last day
of each fiscal quarter of the Company commencing with the fiscal
quarter ending March 31, 2004. Any audit adjustment for fiscal
year ended December 31, 2003 that results in an adjustment to the
equity accounts in excess of $53,416,000, will adjust the minimum
Tangible Net Worth requirement on a dollar for dollar basis.
3. Fixed Charge Coverage. Borrower will maintain, as of the end of
each fiscal quarter, a FIXED CHARGE COVERAGE RATIO of not less
than the amount required by the following schedule:
A. 1.50x, during the fiscal quarter ending September 30, 2004;
and
B. 1.40x, during the fiscal quarter ending December 31, 2004.
C. 1.20x, for all fiscal quarters beginning after December 31,
2004.
[No fixed charge coverage ratio requirement in first or second quarter
2004.]
4. Minimum EBITDAR. Borrower shall achieve EBITDAR of not less than
the amount required by the following schedule:
A. -$2,500,000.00 for the fiscal quarter ending on March 31,
2004;
B. -$4,500,000.00, combined, for the preceding two fiscal
quarters ending on June 30, 2004;
C. $8,000,000.00, combined, for the preceding three fiscal
quarters ending September 30, 2004; and
D. $20,000,000.00, combined, for the preceding four fiscal
quarters ending December 31, 2004.
[EBITDAR to be calculated on a cumulative basis beginning in first quarter
2004.]
Page 7
5. The term "CURRENT RATIO" means, at any particular date, (a)
Current Assets as of such date divided by (b) Current Liabilities
as of such date.
6. The term "CURRENT ASSETS" means all amounts which, in conformity
with GAAP, would be included as current assets on a consolidated
balance sheet of Horizon Offshore, Inc. (the "Company") and its
subsidiaries.
7. The term "CURRENT LIABILITIES" means all amounts which, in
conformity with GAAP, would be included as current liabilities on
a consolidated balance sheet of the Company and its subsidiaries,
excluding all revolving facilities and any balloon payment due in
the next twelve (12) months.
8. The term "NET INCOME" means, for any period, with respect to the
Company and its Subsidiaries, the consolidated net income (or
loss) of the Company and its Subsidiaries for such period,
determined in accordance with GAAP applied consistently,
(excluding any extraordinary items during such period).
9. The term "TANGIBLE NET WORTH" means, at any particular date, all
amounts which, in conformity with GAAP, would be included as
stockholder's equity on a consolidated balance sheet of the
Company and its subsidiaries; provided, however, there shall be
excluded there from (a) any amount at which shares of capital
stock of the Company or any Subsidiary appear as an asset on the
Company's or such Subsidiary's balance sheet, (b) goodwill,
including any amounts, however designated, that represent the
excess of purchase price paid for assets or stock over the value
assigned thereto, (c) patents, trademarks, trade names, and
copyrights, (d) deferred expenses, (e) loans and advances to any
stockholder, director, officer, or employee of the Company or any
Subsidiary or any Affiliate, (f) all other assets which are
properly classified as intangible assets; and (g) any
paid-in-kind interest on the 2004 Subordinated Notes.
10. The term "FIXED CHARGE COVERAGE RATIO" means for the Company and
its Subsidiaries, on a consolidated basis,
(a) as of September 30, 2004, (i) EBITDA for the quarter ended as
of September 30, 2004 divided by (ii) the sum of (A) Current
Maturities of Long Term Debt as of September 30, 2004 divided by
four (4), plus (B) Cash Interest for the quarter ended September
30, 2004, plus (C) Tax Expense for the quarter ended September
30, 2004, and
(b) as of December 31, 2004, (i) EBITDA for the quarters ended
September 30, 2004 and December 31, 2004 divided by (ii) the sum
of (A) Current Maturities of Long Term Debt as of December 31,
2004 divided
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by two (2), plus (B) Cash Interest for the quarters ended
September 30, 2004 and December 31, 2004, plus (C) Tax Expense
for the quarters ended September 30, 2004 and December 31, 2004,
and
(c) as of March 31, 2005, (i) EBITDA for the quarters ended
September 30, 2004, December 31, 2004, and March 31, 2005 divided
by (ii) the sum of (A) Current Maturities of Long Term Debt as of
March 31, 2005 times .75 (seventy-five percent), plus (B) Cash
Interest for the quarters ended September 30, 2004 , December 31,
2004, and March 31, 2005, plus (C) Tax Expense for the quarters
ended September 30, 2004 , December 31, 2004, and March 31, 2005,
and
(d) as of June 30, 2005 and all quarter ending thereafter, (i)
EBITDA for the four (4) quarters there ended divided by (ii) the
sum of (A) Current Maturities of Long Term Debt as of the quarter
there ended, plus (B) Cash Interest for the four (4) quarters
there ended, plus (C) Tax Expense for the four (4) quarters there
ended.
11. The term "EBITDA" means for the Company and its Subsidiaries, on
a consolidated basis, for any period, the sum of (a) Net Income
before gains and losses on sales of assets (to the extent such
gains and losses are included in earnings), plus (b) TAX EXPENSE,
plus (c) depreciation and amortization, plus (d) Interest
Expense.
12. The term "CASH INTEREST" means, for any period, the consolidated
interest expense of the Company and its Subsidiaries for such
period, determined in accordance with GAAP applied consistently,
less the interest related to the Subordinated Debt which is in
fact paid in kind.
13. The term "CURRENT MATURITIES OF LONG TERM DEBT" means for the
Company and its Subsidiaries on a consolidated basis, the
principal amount due and payable during the next succeeding
twelve month period on Total Funded Debt of the Company and its
Subsidiaries which has a final maturity more than twelve months
from the date of calculation, excluding all revolving facilities
and any balloon payment due in the next twelve (12) months.
14. The term "INTEREST EXPENSE" means, for any period, the
consolidated interest expense of the Company and its Subsidiaries
for such period, determined in accordance with GAAP applied
consistently.
15. The term "TAX EXPENSE" means, for any period, for the Company and
its Subsidiaries, on a consolidated basis, the sum of all tax
expense of the Company and its Subsidiaries for such period
determined in accordance with GAAP applied consistently.
Page 9
16. The term "EBITDAR" means for the Company and its Subsidiaries, on
a consolidated basis, for any period, the sum of (a) Net Income
before gains and losses on sales of assets (to the extent such
gains and losses are included in earnings), plus (b) Tax Expense,
plus (c) depreciation and amortization, plus (d) Interest
Expense, plus (e) restructuring charges, including costs of
professional advisors to the Borrowers (for the professional
advisors to the Borrowers, the Lenders or other creditors) not to
exceed $1,600,000 for the fiscal year ended December 31, 2004.
17. The term "2004 Subordinated Notes" means the subordinated notes
of Horizon Offshore, Inc., issued pursuant to the Purchase
Agreement dated as of March __, 2004, and all related liens and
security documents.
8. REPORTING REQUIREMENTS. Until (i) the Notes and all other obligations and
liabilities of Borrower under this Loan Agreement and the other Loan
Documents are fully paid and satisfied, and (ii) the Bank has no further
commitment to lend hereunder, Borrower will, unless Bank shall otherwise
consent in writing, furnish to Bank:
a. Interim Financial Statements. As soon as available, and in any event
within forty-five (45) days after the end of each fiscal quarter of
each fiscal year of Borrower, a balance sheet and income statement of
Borrower as of the end of such fiscal quarter together with a copy of
all filings with the Securities and Exchange Commission, all in form
and substance and in reasonable detail satisfactory to Bank and duly
certified (subject to year-end review adjustments) by the President
and/or Chief Financial Officer of Borrower (i) as being true and
correct in all material aspects to the best of his or her knowledge
and (ii) as having been prepared in accordance with generally accepted
accounting principles, consistently applied, and in each case audited
by independent public accountants of recognized standing acceptable to
Bank.
b. Annual Financial Statements. As soon as available and in any event
within ninety (90) days after the end of each fiscal year of Borrower,
a balance sheet and income statement of Borrower as of the end of such
fiscal year together with a copy of all filings with the Securities
and Exchange Commission, all in form and substance and in reasonable
detail satisfactory to Bank and duly certified (subject to year-end
review adjustments) by the President and/or Chief Financial Officer of
Borrower (i) as being true and correct in all material aspects to the
best of his or her knowledge and (ii) as having been prepared in
accordance with generally accepted accounting principles, consistently
applied, and in each case audited by independent public accountants of
recognized standing acceptable to Bank.
Page 10
9. EVENTS OF DEFAULT. Each of the following shall constitute an "Event of
Default" under this Loan Agreement:
a. The failure, refusal or neglect of Borrower to pay when due any part
of the principal of, or interest on, the Notes or any other
indebtedness or obligations owing to Bank by Borrower from time to
time.
b. The failure of Borrower or any Obligated Party (as defined below) to
timely and properly observe, keep or perform any covenant, agreement,
warranty or condition required in this Loan Agreement or in any of the
other Loan Documents.
c. The occurrence of an event of default under any of the other Loan
Documents or under any other agreement now existing or hereafter
arising between Bank and Borrower.
d. Any representation contained in this Loan Agreement or in any of the
other Loan Documents made by Borrower or any Obligated Party is false
or misleading in any material respect.
e. The occurrence of any event which permits the acceleration of the
maturity of any indebtedness owing by Borrower to any third party
under any agreement or understanding.
f. If Borrower or any Obligated Party: (i) becomes insolvent, or makes a
transfer in fraud of creditors, or makes an assignment for the benefit
of creditors, or admits in writing its inability to pay its debts as
they become due; (ii) generally is not paying its debts as such debts
become due; (iii) has a receiver, trustee or custodian appointed for,
or take possession of, all or substantially all of the assets of such
party, either in a proceeding brought by such party or in a proceeding
brought against such party and such appointment is not discharged or
such possession is not terminated within sixty (60) days after the
effective date thereof or such party consents to or acquiesces in such
appointment or possession; (iv) files a petition for relief under the
United States Bankruptcy Code or any other present or future federal
or state insolvency, bankruptcy or similar laws (all of the foregoing
collectively referred to as "Applicable Bankruptcy Law") or an
involuntary petition for relief is filed against such party under any
Applicable Bankruptcy Law and such involuntary petition is not
dismissed within sixty (60) days after the filing thereof, or an order
for relief naming such party is entered under any Applicable
Bankruptcy Law, or any composition, rearrangement, extension,
reorganization or other relief of debtors now or hereafter existing is
requested or consented to by such party; (v) fails to have discharged
within a period of thirty (30) days any attachment, sequestration or
similar writ levied upon any property
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of such party; or (vi) fails to pay within thirty (30) days any final
money judgment against such party.
g. If Borrower or any Obligated Party is an entity, the liquidation,
dissolution, merger or consolidation of any such entity or, if
Borrower or any Obligated Party is an individual, the death or legal
incapacity of any such individual.
h. The entry of any judgment against Borrower or the issuance or entry of
any attachment or other lien against any of the property of Borrower
for an amount in excess of $300,000.00, to the extent not covered by
insurance, if undischarged, unbonded or undismissed within thirty (30)
days after such entry.
Nothing contained in this Loan Agreement shall be construed to limit the events
of default enumerated in any of the other Loan Documents and all such events of
default shall be cumulative. The term "Obligated Party", as used in this Loan
Agreement, shall mean any party other than Borrower who secures, guarantees
and/or is otherwise obligated to pay all or any portion of the indebtedness
evidenced by the Notes.
10. REMEDIES. Upon the occurrence of any one or more of the foregoing Events of
Default, (a) the entire unpaid balance of principal of the Notes, together
with all accrued but unpaid interest thereon, and all other indebtedness
owing to Bank by Borrower at such time shall, at the option of Bank, become
immediately due and payable without further notice, demand, presentation,
notice of dishonor, notice of intent to accelerate, notice of acceleration,
protest or notice of protest of any kind, all of which are expressly waived
by Borrower, and (b) Bank may, at its option, cease further advances under
any of the Notes; provided, however, concurrently and automatically with
the occurrence of an Event of Default under subparagraph (f) in the
immediately preceding paragraph (i) further advances under the Notes shall
cease, and (ii) the Notes and all other indebtedness owing to Bank by
Borrower at such time shall, without any action by Bank, become due and
payable, without further notice, demand, presentation, notice of dishonor,
notice of acceleration, notice of intent to accelerate, protest or notice
of protest of any kind, all of which are expressly waived by Borrower. All
rights and remedies of Bank set forth in this Loan Agreement and in any of
the other Loan Documents may also be exercised by Bank, at its option to be
exercised in its sole discretion, upon the occurrence of an Event of
Default.
11. RIGHTS CUMULATIVE. All rights of Bank under the terms of this Loan
Agreement shall be cumulative of, and in addition to, the rights of Bank
under any and all other agreements between Borrower and Bank (including,
but not limited to, the other Loan Documents), and not in substitution or
diminution of any rights now or hereafter held by Bank under the terms of
any other agreement.
12. WAIVER AND AGREEMENT. Neither the failure nor any delay on the part of Bank
to exercise any right, power or privilege under any of the Loan Documents
shall operate as a
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waiver thereof, nor shall any single or partial exercise of such right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. No waiver of any provision
in this Loan Agreement or in any of the other Loan Documents and no
departure by Borrower therefrom shall be effective unless the same shall be
in writing and signed by Bank, and then shall be effective only in the
specific instance and for the purpose for which given and to the extent
specified in such writing. No modification or amendment to this Loan
Agreement or to any of the other Loan Documents shall be valid or effective
unless the same is signed by the party against whom it is sought to be
enforced.
13. BENEFITS. This Loan Agreement shall be binding upon and inure to the
benefit of Bank and Borrower, and their respective successors and assigns,
provided, however, that Borrower may not, without the prior written consent
of Bank, assign any rights, powers, duties or obligations under this Loan
Agreement or any of the other Loan Documents.
14. NOTICES. All notices, requests, demands or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
given by (i) personal delivery, (ii) expedited delivery service with proof
of delivery, or (iii) United States mail, postage prepaid, registered or
certified mail, return receipt requested, sent to the intended addressee at
the address set forth on the signature page hereof and shall be deemed to
have been received either, in the case of personal delivery, as of the time
of personal delivery, in the case of expedited delivery service, as of the
date of first attempted delivery at the address and in the manner provided
in this Loan Agreement, or in the case of mail, upon deposit in a
depository receptacle under the care and custody of the United States
Postal Service. Either party shall have the right to change its address for
notice hereunder to any other location within the continental United States
by notice to the other party of such new address at least thirty (30) days
prior to the effective date of such new address.
15. CONSTRUCTION. This Loan Agreement and the other Loan Documents have been
executed and delivered in the State of Texas, shall be governed by and
construed in accordance with the laws of the State of Texas, and shall be
performable by the parties hereto in the county in Texas where the Bank's
address set forth on the signature page hereof is located.
16. INVALID PROVISIONS. If any provision of this Loan Agreement or any of the
other Loan Documents is held to be illegal, invalid or unenforceable under
present or future laws, such provision shall be fully severable and the
remaining provisions of this Loan Agreement or any of the other Loan
Documents shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance.
17. USURY DISCLAIMED. It is agreed by Lender and Borrower to be their joint
intent at all times to comply with the usury and all other laws relating to
this Loan Agreement, the Note and all Loan Documents, now or hereafter in
effect in the United States and the
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State of Texas. If the laws of the United States or the State of Texas are
ever revised, repealed or judicially interpreted, or any other
circumstances should occur, and the same causes sums constituting interest
and called for herein or under the Note or any document executed in
connection herewith or contracted for, charged or received with respect to
the Loan, to be in excess of the amount (the "Maximum Amount") or produce a
rate in excess of the rate (the "Maximum Rate") of interest that Lender may
contract for, charge and collect pursuant to the provisions of applicable
laws and in regard to which Borrower would be prevented successfully from
raising the claim or defense of usury, then it is Borrower's and Lender's
express intent that all amounts in excess of the Maximum Amount theretofore
collected by Lender be, at the option of Lender, either refunded to
Borrower forthwith or credited on the unpaid principal amount of the Note,
and the provisions hereof and of the Note shall be immediately deemed
reformed and amounts thereafter collectable hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as
to comply with the then applicable law but so as to permit the recovery of
the Maximum Rate and Maximum Amount of interest which may be collected
under said law. In addition, in the event that the maturity of the Note is
accelerated by reason of an election by Lender hereunder or under the Note
or the Loan Documents, earned interest may never include more that the
amount calculated pursuant to the Maximum Rate, and if unearned interest is
provided for herein or in the Note, then Borrower and any other party
obligated hereon and thereon hereby agree to accept as their sole remedy
under such circumstances either (i) the cancellation of said unearned
interest, or (ii) if theretofore paid, either the return to Borrower or the
crediting of said unearned interest on the principal amount of the Note,
whichever remedy may be elected by Lender. Borrower and Lender further
agree that if any amounts constituting interest are collected hereunder or
under the Note, or any Loan Documents, which produce a rate in excess of
the Maximum Rate, that such amounts collected will have been and will be
deemed to have been the result of a mathematical error on the part of the
Borrower and Lender.
18. EXPENSES. Borrower shall pay all costs and expenses (including, without
limitation, reasonable attorneys' fees) in connection with (i) any action
required in the course of administration of the indebtedness and
obligations evidenced by the Loan Documents, and (ii) any action in the
enforcement of Bank's rights upon the occurrence of Event of Default.
19. PARTICIPATION OF THE LOAN. Borrower agrees that Bank may, at its option,
sell interests in the Loan and its rights under this Loan Agreement to a
financial institution or institutions and, in connection with each such
sale, Bank may disclose any financial and other information available to
Bank concerning Borrower to each perspective purchaser.
20. ENTIRE AGREEMENT. This Loan Agreement (together with the other Loan
Documents) contains the entire agreement among the parties regarding the
subject matter hereof and supersedes all prior written and oral agreements
and understandings among the parties hereto regarding same.
Page 14
21. CONFLICTS. In the event any term or provision hereof is inconsistent with
or conflicts with any provision of the other Loan Documents, the terms and
provisions contained in this Loan Agreement shall be controlling.
22. COUNTERPARTS. This Loan Agreement may be separately executed in any number
of counterparts, each of which shall be an original, but all of which,
taken together, shall be deemed to constitute one and the same instrument.
23. THE WRITTEN LOAN AGREEMENT FOR THE LOAN OR OTHER EXTENSION OF CREDIT
DESCRIBED ABOVE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES, AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES
If the foregoing correctly sets forth our mutual agreement, please so
acknowledge by signing and returning this Loan Agreement to the undersigned.
Very truly yours,
SOUTHTRUST BANK
By:
Name:
Title:
Bank's Address:
X.X. Xxx 0000
Xxxxxx, Xxxxx 00000
Page 15
ACCEPTED as of the date first
written above.
BORROWER:
HORIZON VESSELS, INC. a Delaware Corporation
BY: /s/ Xxxxx X. Xxxxx
-------------------------------------
NAME: XXXXX X. XXXXX
TITLE: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
HORIZON OFFSHORE, INC., a Delaware Corporation
BY: /s/ Xxxxx X. Xxxxx
-------------------------------------
NAME: XXXXX X. XXXXX
TITLE: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
HORIZON OFFSHORE CONTRACTORS, INC., a Delaware Corporation
BY: /s/ Xxxxx X. Shar
-------------------------------------
NAME: XXXXX X. XXXXX
TITLE: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
Borrower's Address:
0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
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