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EXHIBIT 10.1
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "AMENDMENT")
is made and entered into as of April ___, 2000, by and among BANC OF AMERICA
COMMERCIAL FINANCE CORPORATION, THROUGH ITS COMMERCIAL FUNDING DIVISION
("LENDER") and FIRST WAVE MARINE, INC., a Delaware corporation ("FIRST WAVE"),
NEWPARK SHIPBUILDING - GALVESTON ISLAND, INC., a Texas corporation ("NEWPARK
GALVESTON"), NEWPARK SHIPBUILDING - PELICAN ISLAND, INC., a Texas corporation
("NEWPARK PELICAN ISLAND"), NEWPARK SHIPBUILDING - GREENS BAYOU, INC., a Texas
corporation ("NEWPARK GREENS BAYOU"), and NEWPARK SHIPBUILDING - PASADENA, INC.,
a Texas corporation ("NEWPARK PASADENA"), (First Wave, Newpark Galveston,
Newpark Pelican Island, Newpark Greens Bayou and Newpark Pasadena being referred
to individually, collectively, and jointly and severally, as "BORROWER".
RECITALS
A. Borrower and Lender have entered into that certain Loan and Security
Agreement, dated October 14, 1999 (as amended, the "AGREEMENT").
B. Borrower and Lender desire to amend the Agreement set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01 AMENDMENT TO SECTION 1. Effective as of the date hereof, Section
1.17A is hereby added to the Loan Agreement to provide as follows:
"1.17A `Net Income Factor' shall mean: (a) if the net income
of Borrower and its Subsidiaries (inclusive of Newpark Shipbuilding -
Xxxxx Island, Inc. ("XXXXX")) for any quarter as shown on the most
recent financial statements furnished pursuant to Section 5.13(c)(ii)
and (iii) hereof is greater than $0, then zero percent (0.00%) and (b)
if the net income of Borrower and its Subsidiaries
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(inclusive of Xxxxx) for any quarter as shown on the most recent
financial statements furnished pursuant to Section 5.13(c)(ii) and
(iii) hereof is less than or equal to $0, then two percent (2.00%)."
2.02 AMENDMENT TO SECTION 2.1. Effective as of the date hereof, the
second sentence of Section 2.1 is hereby amended in its entirety to provide as
follows:
"Changes in the Interest Rate shall be effective as of the
date of any change in the Prime Rate or the Monday preceding any change
in the Net Income Factor, as applicable."
2.03 AMENDMENT TO SCHEDULE A. Effective as of the date hereof, Schedule
A to the Agreement is hereby amended as follows:
(a) Section 3 of Schedule A is hereby amended by deleting said
Section in its entirety and inserting the following in lieu thereof:
"3. Interest Rates:
(a) Revolving Loans: sum of (a) Net Income
Factor; (b) 0.50%; and
(c) the Prime Rate
(b) Term Loan: sum of (a) Net Income
Factor; (b) 1.0%; and
(c) the Prime Rate"
(b) Section 8(a) of Schedule A is hereby amended by deleting
said Section in its entirety and inserting the following in lieu
thereof:
"(a) Maximum Cumulative From and after January 1,
Net Loss: 2000 until the Maturity
Date, Cumulative Net Losses
of the Borrower (inclusive
of Xxxxx) less amounts
contributed as equity to the
capital of Borrower and
Xxxxx, shall not exceed
$4,500,000. As used herein
"Cumulative Net Losses"
shall mean: (a) net income
(or net loss, as applicable)
of Borrower and Xxxxx plus
(b) depreciation and
amortization, less (c) debt
service and any non-financed
capital expenditures plus
(d) accrued interest
attributable to the
subordinated note payable to
Newpark Shipholding L.P. due
September 3, 2003, and plus
(e) the amount of any tax
refund made to Borrower and
Xxxxx."
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ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Lender:
(a) Lender shall have received (i) this Amendment, duly
executed by each Borrower, and (ii) such additional documents,
instruments and information as Lender or its legal counsel may request;
(b) The representations and warranties contained herein, in
the Agreement and in the other Loan Documents, as each is amended
hereby, shall be true and correct as of the date hereof, as if made on
the date hereof;
(c) No Event of Default shall have occurred and be continuing,
unless such Event of Default has been specifically disclosed in writing
by Borrower to Lender; and
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Lender and its legal counsel.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
4.01 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower and Lender agree that the Agreement
and the other Loan Documents, as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms.
4.02 REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the Certificate of Incorporation of
Borrower; (b) the representations and warranties contained in the Agreement, as
amended hereby, and any other Loan Document are true and correct on and as of
the date hereof and on and as of the date of execution hereof as though made on
and as of each such date; (c) no Event of Default under the Agreement, as
amended hereby, has occurred and is continuing; and (d) Borrower is in full
compliance with all covenants and agreements contained in the Agreement and the
other Loan Documents, as amended hereby.
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ARTICLE V
MISCELLANEOUS PROVISIONS
5.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in the Agreement or any other Loan Documents, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Lender or any closing shall affect the
representations and warranties or the right of Lender to rely upon them.
5.02 REFERENCE TO AGREEMENT. Each of the Agreement and the other Loan
Documents, and any and all other Loan Documents, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement, as amended hereby, are hereby amended so that any
reference in the Agreement and such other Loan Documents to the Agreement shall
mean a reference to the Agreement as amended hereby.
5.03 EXPENSES OF LENDER. As provided in the Agreement, Borrower agrees
to pay on demand all costs and expenses incurred by Lender in connection with
the preparation, negotiation and execution of this Amendment and the other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Lender's legal counsel, and all costs and expenses incurred by Lender in
connection with the enforcement or preservation of any rights under the
Agreement, as amended hereby, or any other Loan Documents, including, without,
limitation, the costs and fees of Lender's legal counsel.
5.04 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
5.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of Lender and Borrower and their respective successors and
assigns, except that Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
5.06 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
5.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by
Lender to or for any breach of or deviation from any covenant or condition by
Borrower shall be deemed a consent to or waiver of any other breach of the same
or any other covenant, condition or duty.
5.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
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5.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN NEGOTIATED, EXECUTED AND
DELIVERED, AND SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE CONFLICT OF LAW RULES) OF THE STATE OF NEW YORK.
5.10 FINAL AGREEMENT. THE AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH
AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND
LENDER.
5.11 RELEASE. BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM LENDER. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES LENDER, ITS PREDECESSORS, OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER,
KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART
ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW OR
HEREAFTER HAVE AGAINST LENDER, ITS PREDECESSORS, OFFICERS, DIRECTORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS," INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND
EXECUTION OF THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been executed and is effective
as of the date first above-written.
LENDER:
BANC OF AMERICA COMMERCIAL
FINANCE CORPORATION, THROUGH
ITS COMMERCIAL FUNDING DIVISION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
BORROWER:
FIRST WAVE MARINE, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxx
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Its Authorized Signatory
NEWPARK SHIPBUILDING -
GALVESTON ISLAND, INC., a Texas
corporation
By: /s/ Xxxxxxx X. Xxxx
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Its Authorized Signatory
NEWPARK SHIPBUILDING -
PELICAN ISLAND, INC., a Texas
corporation
By: /s/ Xxxxxxx X. Xxxx
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Its Authorized Signatory
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XXXXXXX XXXXXXXXXXXX -
XXXXXX XXXXX, INC., a Texas
corporation
By: /s/ Xxxxxxx X. Xxxx
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Its Authorized Signatory
NEWPARK SHIPBUILDING -
PASADENA, INC., a Texas
corporation
By: /s/ Xxxxxxx X. Xxxx
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Its Authorized Signatory
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