EXHIBIT 10.14
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
This First Amendment to Second Amended and Restated Loan Agreement is dated
as of December 31, 2001, (the "Amendment") and is by and among Whitney National
Bank ("Lender"), a national banking association, and Xxxxxx Shipyard, L.L.C.
("Borrower"), a Louisiana limited liability company, and Orange Shipbuilding
Company, Inc. ("Orange"), a Texas corporation, and Xxxxxx Industries,
Inc.("Xxxxxx "), a Delaware corporation, (with Orange and Xxxxxx collectively
referred to as "Guarantor").
WITNESSETH:
WHEREAS, Lender, Xxxxxx Shipyard, Inc. and Orange entered into a Loan
Agreement, dated as of March 19, 1998, which provided for a term loan in the sum
of Twenty-Five Million and No/100 ($25,000,000.00) Dollars (the "Initial Loan
Agreement");
WHEREAS, Lender, Xxxxxx Shipyard, Inc., Orange and Guarantor entered into
an amended and restated Loan Agreement, dated as of May 22, 1998, as amended by
First Amendment to Loan Agreement dated as of April 30, 1999, which provided for
a line of credit in the amount of Ten Million and No/100 ($10,000,000) Dollars
in addition to the term loan of $25,000,000.00 and amended and restated the
Initial Loan Agreement (the "First Amended and Restated Loan Agreement");
WHEREAS, Lender, Xxxxxx Shipyard, Inc., Orange and Guarantor entered into a
Second Amended and Restated Loan Agreement, dated as of December 31, 1999,
whereby Lender consented to Borrower using up to $1,000,000 of the line of
credit to repurchase shares of stock of Borrower and extending the line of
credit (the "Loan Agreement");
WHEREAS, Xxxxxx Shipyard, Inc. on December 28, 2000, but effective as of
December 31, 2000, merged into Xxxxxx Shipyard, L.L.C., a Louisiana limited
liability company with Xxxxxx Shipyard, L.L.C. being the surviving entity and
assuming all obligations and liabilities of Xxxxxx Shipyard, Inc.;
WHEREAS, Borrower has requested the restructure of the term loan of
$25,000,000.00 into a $9,007,000.00 term loan and the renewal of the line of
credit in the amount of $10,000,000.00 Dollars both at a reduced interest rate
and Lender is agreeable to such request upon the terms and conditions
hereinafter provided;
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Borrower,
Guarantor and Lender agree to amend the Loan Agreement as follows:
I.
All term used herein which are not otherwise defined in this Amendment
shall have the meaning as provided in the Loan Agreement. The Loan Agreement is
hereby amended by the addition or restatement of the following definitions in
Section 1.01 and by the deletion of the definition "Unused Line of Credit":
"Agreement" shall mean the Loan Agreement as amended by the Amendment.
"Borrower" shall mean Xxxxxx Shipyard, L.L.C., a Louisiana limited
liability company.
"Business Day" shall mean a day other than a Saturday, Sunday or legal
holiday for commercial banks in New Orleans, Louisiana and London, England.
"Closing Date" shall mean effective as of December 31, 2001.
"Company Agent" shall mean Xxxxx X. Xxxxxxxxx or Xxxxxxx X. Xxxxx, Xx.
"Drydock" shall mean that certain new drydock approximately 280 feet long
by 160 feet wide with a lifting capacity of 10,000 tons, which was first
put into operation in March, 2001 at the Xxxxxx Shipyard.
"Libor Rate" shall mean, for any Interest Period, an interest rate per
annum (rounded upward to the nearest hundredth of a percent (1/100 of 1%))
which is the offered quotation to Lender of the London interbank offered
rate for U.S. Dollar deposits of amounts in immediately available funds in
the London market for one month, two months, three months or six months as
recorded by the Bloomberg, L.P. or such other service used by Lender as an
information vendor for the purpose of displaying British Bankers'
Association interest settlement rates for U.S. Dollar Deposits, as
determined by Lender as of the opening of business of Lender or as soon
thereafter as practicable, plus the applicable margin of 175 basis points
(1.75% percent). The Libor Rate shall be determined by Lender as of the
opening of business of Lender or as soon thereafter as practicable.
"Line of Credit Period" shall mean the period commencing on the Closing
Date and ending on May 31, 2003.
II.
The Loan Agreement is hereby amended by amending and restating Sections
2.02 (a) and (b), Section 2.03 and Section 2.05 as follows:
SECTION 2.02. (A) TERM LOAN. Subject to and upon the terms and
conditions contained in this Agreement, and relying on the representations
and warranties contained in this Agreement, the Lender agrees to make a
term loan on the Closing Date in the principal sum of Nine Million, Seven
Thousand and No/100 ($9,007,000.00) Dollars (the
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"Term Loan") which will be evidenced by a promissory note payable to the
order of Lender in the amount of $9,007,000.00, with interest to accrue at
the Libor Rate or Base Rate in accordance with Section 2.03. The Term Loan
shall be payable in 40 equal monthly principal payments of $107,000.00,
plus accrued interest with a final payment of all unpaid principal and
interest then due payable on May 31, 2005. The first installment of
principal and interest on the Term Loan shall be payable on January 31,
2002 with the succeeding installments payable on the last day of each month
until the Term Loan has been paid in full.
(B) LINE OF CREDIT. Subject to and upon the terms and conditions
contained in this Agreement, and relying on the representations and
warranties contained in this Agreement, the Lender agrees to make Advances
to Borrower periodically during the Line of Credit Period in an aggregate
principal amount outstanding not to exceed the sum of Ten Million and
No/100 ($10,000,000.00) Dollars (the "Line of Credit"). On May 31, 2003,
Lender's obligations to make any Advance on the Line of Credit shall cease.
The Line of Credit shall be evidenced by a promissory note executed by the
Borrower in a form acceptable to Lender, dated the Closing Date, in the
principal sum of $10,000,000.00, payable to the order of the Lender on May
31, 2003. During the Line of Credit Period, the Advances shall accrue
interest at Libor Rate or Base Rate in accordance with Section 2.03 and
shall be payable interest only monthly in arrears on the last day of each
month, beginning the month of the initial Advance, and continuing on the
last day of each succeeding month until May 30, 2003.
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SECTION 2.03. CONVERSION. (a) The Borrower will determine the Interest
Period and the interest rate for the Term Loan on the Closing Date. On the
date of the initial Advance, Borrower will determine the Interest Period
and whether the Advance will accrue interest at Libor Rate or the Base
Period. Upon the expiration of such Interest Period and any Interest Period
thereafter, the Borrower shall have the option to convert the interest rate
accruing on all (but not less than all) of the outstanding principal
balance of the Term Loan or the Line of Credit, as applicable, into a Libor
Rate or Base Rate; provided that (i) a Loan can not be converted when any
Default has occurred and is continuing and in such event the Loan shall
continue to accrue interest at the rate in effect as of the date of such
Default, and (ii) no conversions of any Loan are allowed until the
expiration of the Interest Period applicable to the existing rate of
interest has expired.
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SECTION 2.05. USE OF PROCEEDS. Subject to the compliance with the
terms and conditions of this Agreement, Borrower may use the Line of Credit
to fund the general corporate operating needs of Borrower and/or the short
term funding of Borrower's capital expenditures and acquisitions on terms
acceptable to Lender. In addition to the foregoing, Borrower may use up to
the aggregate principal amount of $1,000,000.00 of the Line of Credit for
the purchase by either Borrower or Xxxxxx of up to 200,000 shares of
Xxxxxx'x outstanding stock, which shall be owned and held as treasury stock
by
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Borrower or Xxxxxx, whoever is the purchaser of such stock. Subject to the
compliance with the terms and conditions of this Agreement, Borrower shall
use the proceeds of the Term Loan to satisfy the existing term loan of
Borrower and to fund capital expenditures.
III.
The Loan Agreement is hereby amended by deleting Section 2.0.7
IV.
The Loan Agreement is hereby amended by adding a Section 3.01.1
SECTION 3.01.1 DRYDOCK. On or before March 30, 2002, Borrower agrees
to deliver to Lender a first preferred ship mortgage and security interest
in the Drydock to secure the payment and performance of the Obligations to
be documented upon terms and conditions satisfactory to Lender.
V.
The Loan Agreement is hereby amended by amending and restating Section 4.01
in its entirety:
SECTION 4.01. CORPORATE EXISTENCE. (a) Borrower is a validly organized
limited liability company duly existing and in good standing under the laws
of the State of Louisiana and is duly qualified as a foreign limited
liability company in all jurisdictions wherein the property owned or the
business transacted by it make such qualifications necessary. Orange is a
validly organized corporation duly existing and in good standing under the
laws of the State of Texas and is duly qualified as a foreign corporation
in all jurisdictions wherein the property owned or the business transacted
by it make such qualifications necessary. Xxxxxx is a validly organized
corporation duly existing and in good standing under the laws of the State
of Delaware and is duly qualified as a foreign corporation in the State of
Louisiana and in all jurisdictions wherein the property owned or the
business transacted by it make such qualifications necessary.
(b) Borrower has never done business under any name other than the
name of Xxxxxx Shipyard, Inc., as set forth above, and as Xxxxxx
Industries, Inc. Borrower's tax identification number is 00-0000000 and its
principal place of business is 0000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxx
00000. Borrower's corporate charter number with the Secretary of State of
Louisiana is 35019085K.
(c) Orange has never done business under any name other than its name
set forth above and as Xxxxx Industries, Inc. Orange's tax identification
number is 00-0000000 and its principal place of business is 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000.
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(d) Xxxxxx has never done business under any name other than its name
set forth above. Xxxxxx'x tax identification number is 00-0000000 and its
principal place of business is 0000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxx
00000.
VI.
The Loan Agreement is hereby amended by amending and restating Section 5.01
in its entirety:
SECTION 5.01. FINANCIAL COVENANTS. Borrower shall comply with the
following Financial Covenants until the Loan has been paid in full, except
as provided herein:
(a) DEBT TO TANGIBLE NET WORTH. The Borrower on a consolidated basis
with Guarantor and each Subsidiary shall maintain a Debt to Net Worth Ratio
of no greater than 1.5 to 1.0 until the Loan is paid in full.
(b) DEBT SERVICE COVERAGE RATIO. Borrower on a consolidated basis with
Guarantor and each Subsidiary shall maintain at all times during the
existence of the Loan a Debt Service Coverage Ratio of at least 1.35 to 1.0
as of the end of each fiscal quarter.
(c) CURRENT RATIO. Borrower on a consolidated basis with Guarantor and
each Subsidiary shall maintain at all times during the existence of the
Loan a ratio of Current Assets (minus any prepaid expenses) to Current
Liabilities of 1.25 to 1.0 or greater.
VII.
The Loan Agreement is hereby amended by amending and restating the
applicable subsections of Section 7.01 in their entirety:
SECTION 7.01. CONDITIONS OF INITIAL ADVANCE. The obligation of the
Lender to make the initial Advance is subject to the accuracy of each and
every representation and warranty of the Borrower contained in this
Agreement, and to the receipt of the following on or before the Closing
Date:
(a) Agreement. A duly executed counterpart of this Amendment signed by
all the parties thereto.
(b) Note. The duly executed notes evidencing the Line of Credit and
the Term Loan signed by the Borrower.
(c) Corporate Authorization. Such authorization by Borrower's in form
and substance satisfactory to the Lender with respect to the authorization
of this Agreement and the Note, as the case may be and the individuals
authorized to sign such instruments.
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(d) Fees. Pay all fees and expenses of Lender's counsel, appraisers,
inspectors and related experts.
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(g) Representations. Each of the representations and warranties of the
Borrower contained in the Agreement and this Amendment shall be true and
correct on and as of the date of the initial Advance and the Closing Date,
except as such representations and warranties relate to matters that are
permitted by this Agreement. Borrower does hereby agree to jointly,
severally and solidarily assume and perform all Obligations that Xxxxxx
Shipyard, Inc. owed or owes to Lender, whether now or in the future.
VIII.
The Loan Agreement is hereby amended by amending and restating Section 8.01
in its entirety:
SECTION 8.01. NOTICES. All notices and other communications given
hereunder or in connection herewith shall be in writing, shall be sent by
registered or certified mail, return receipt requested, postage prepaid, or
by hand delivery with acknowledged receipt of delivery, shall be deemed
given on the date of acceptance or refusal of acceptance shown on such
receipt; and shall be addressed to the party to receive such notice at the
following applicable addresses:
If to the Borrower: Xxxxxx Shipyard, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
If to Lender: Whitney National Bank
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Santa Xxxx, III
Vice President
Any party may, by notice given as aforesaid, change its address for all
subsequent notices.
IX.
Other than as amended hereby, all terms and conditions of the Loan
Agreement shall remain in full force and effect and are acknowledged by the
parties hereto to be in full force and effect as amended hereby. Borrower,
Orange and Guarantor hereby acknowledge that no Defaults have occurred under the
Loan Agreement and there has not occurred any condition,
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event or act which constitutes, or with notice or lapse of time (or both) would
constitute a Default under the Loan Agreement as amended by this Amendment or
otherwise. Orange and Guarantor further acknowledge that their respective
Guaranties remains in full force and effect and continue to secure the payment
and performance of the Obligations, as hereby amended, in accordance with their
terms. Borrower, Orange and Guarantor hereby further represent and warrant to
Lender that the Obligations, as amended hereby, and the Collateral Documents
remain in full force and effect and that the Collateral continues to secure the
payment and performance of the Obligations, as amended hereby, in accordance
with their terms. Borrower, Orange and Guarantor further represent and warrant
to the Lender that their representations and warranties contained in this
Amendment and the Loan Agreement are true and correct on and as of the date
hereof.
X.
This Amendment may be executed in two or more counterparts, and it shall
not be necessary that the signatures of all parties hereto be contained on any
one counterpart hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first above written.
BORROWER:
XXXXXX SHIPYARD, L.L.C.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Xxxxx X. Xxxxxxxxx
Its: Chief Financial Officer
ORANGE SHIPBUILDING COMPANY, INC.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Xxxxx X. Xxxxxxxxx
Its: Chief Financial Officer
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Xxxxx X. Xxxxxxxxx
Its: Chief Financial Officer
WHITNEY NATIONAL BANK
By: /s/ XXXXX X. SANTA XXXX, III
------------------------------------
Xxxxx X. Santa Xxxx, III
Its: Vice President
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