Exhibit 10.2
FIRST AMENDMENT TO EXIM GUARANTEED LOAN AGREEMENT
THIS FIRST AMENDMENT TO EXIM GUARANTEED LOAN AGREEMENT (this "Amendment"),
dated as of April 17, 2002, is between HORIZON OFFSHORE CONTRACTORS, INC., a
Delaware corporation ("Contractors"), HORIZON SUBSEA SERVICES, INC., a Delaware
corporation ("Subsea"), HORIZON VESSELS, INC., a Delaware corporation
("Vessels"), and HORIZEN, L.L.C., a Delaware limited liability company ("LLC",
and together with Contractors, Subsea and Vessels the "Borrowers"), jointly and
severally, each of the financial institutions which is or may from time to time
become a party to such Loan Agreement, as amended (collectively, "Lenders", and
each a "Lender"), and SOUTHWEST BANK OF TEXAS, N.A., a national banking
association, as agent (the "Agent").
RECITALS:
A. Borrowers and Lenders entered into that certain EXIM Guaranteed Loan
Agreement dated as of August 15, 2001 (the "Agreement").
B. Pursuant to the Agreement, each Borrower, Horizon Offshore, Inc., a
Delaware corporation, Horizon Offshore Contractors, Ltd., a company organized
and existing under the laws of the Cayman Islands, and ECH Offshore, S. de X.X.
de C.V., a company organized and existing under the laws of Mexico
(collectively, "Guarantors"), each executed a Guaranty dated as of August 15,
2001 (collectively, the "Guaranties") pursuant to which Guarantors guaranteed to
Agent the payment and performance of the Obligations (as defined in the
Agreement).
C. Borrowers, Lenders and Agent now desire to amend the Agreement as
herein set forth.
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 hereto agree as follows:
ARTICLE I.
Definitions
Section I.1. DEFINITIONS. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the meanings given to such terms
in the Agreement, as amended hereby.
ARTICLE II.
Amendments
Section II.1. AMENDMENT TO SECTION 9.6. Section 9.6 of the Agreement is
amended to read in its entirety as follows:
Section 9.6. RATIO OF FUNDED DEBT TO EBITDA. Parent and its
Subsidiaries will at all times maintain a Ratio of Funded Debt to EBITDA
of not greater than (a) 3.95 to 1.00 as of March 31, 2002, and (b) 3.50 to
1.00 as of June 30, 2002 and at all times thereafter. The Ratio of Funded
Debt to EBITDA will be calculated and tested quarterly as of the last day
of each fiscal quarter of Parent, and for purposes of calculating the
Ratio of Funded Debt to EBITDA, EBITDA shall be calculated for the period
of four fiscal quarters ended as of the date of calculation.
ARTICLE III.
Conditions Precedent
Section III.1. CONDITIONS. The effectiveness of this Amendment is subject
to the receipt by Agent of the following, each in form and substance
satisfactory to Agent and Lenders:
(a) CERTIFICATE-EACH CORPORATE BORROWER. A certificate of the
Secretary or another officer of each Corporate Borrower acceptable to
Agent certifying (i) resolutions of the board of directors of each
Corporate Borrower which authorize the execution, delivery and performance
by such Corporate Borrower of this Amendment and the other Loan Documents
to which such Corporate Borrower is or is to be a party, and (ii) the
names of the officers of each Corporate Borrower authorized to sign this
Amendment and each of the other Loan Documents to which such Corporate
Borrower is or is to be a party together with specimen signatures of such
officers.
(b) CERTIFICATE - LLC. A certificate of a Manager or another officer
of LLC acceptable to Agent certifying (i) resolutions of the Members of
LLC which authorize the execution, delivery and performance by LLC of this
Amendment and the other Loan Documents to which LLC is or is to be a
party, and (ii) the names of the Managers or other officers of LLC
authorized to sign this Amendment and each of the other Loan Documents to
which LLC is or is to be a party together with specimen signatures of such
Persons.
(c) ADDITIONAL INFORMATION. Such additional documents, instruments
and information as Lenders may request.
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ARTICLE IV.
Ratifications, Representations, and Warranties
Section IV.1. 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 except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement are ratified and confirmed
and shall continue in full force and effect. Borrowers and Lenders agree that
the Agreement as amended hereby shall continue to be the legal, valid and
binding obligation of such Persons enforceable against such Persons in
accordance with its terms.
Section IV.2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Each Borrower
hereby represents and warrants to Lenders that (a) the execution, delivery, and
performance of this Amendment and any and all other Loan Documents executed or
delivered in connection herewith have been authorized by all requisite action on
the part of such Borrower and will not violate the Organizational Documents of
such Borrower, (b) the representations and warranties contained in the Agreement
as amended hereby, and all other Loan Documents are true and correct on and as
of the date hereof as though made on and as of the date hereof, (c) upon the
effectiveness of this Amendment no Event of Default or Unmatured Event of
Default will exist, (d) upon the effectiveness of this Amendment Borrowers will
be in full compliance with all covenants and agreements contained in the
Agreement as amended hereby, (e) Borrowers are indebted to Lenders pursuant to
the terms of the Notes, as the same may have been renewed, modified, extended
and rearranged, (f) the liens, security interests, encumbrances and assignments
created and evidenced by the Loan Documents are, respectively, valid and
subsisting liens, security interests, encumbrances and assignments and secure
the Notes as the same may have been renewed, modified or rearranged, and (g) no
Borrower has any claims, credits, offsets, defenses or counterclaims arising
from the Loan Documents or any Lender's performance under the Loan Documents.
ARTICLE V.
Miscellaneous
Section V.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other Loan
Documents including any Loan Document furnished in connection with this
Amendment shall fully survive the execution and delivery of this Amendment and
the other Loan Documents, and no investigation by any Lender or any closing
shall affect the representations and warranties or the right of any Lender to
rely on them.
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Section V.2. REFERENCE TO AGREEMENT. Each of the Loan Documents, including
the Agreement and any and all other agreements, 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 such Loan Documents to the Agreement shall mean a reference to the
Agreement, as amended hereby.
Section V.3. EXPENSES. As provided in the Agreement, Borrowers agree to
pay on demand all costs and expenses incurred by Agent in connection with the
preparation, negotiation and execution of this Amendment and the other documents
and instruments executed pursuant hereto and any and all amendments,
modifications and supplements thereto, including, without limitation, the costs
and fees of Agent's legal counsel, and all costs and expenses incurred by Agent
in connection with the enforcement or preservation of any rights under the
Agreement, as amended hereby, or any other Loan Document, including, without
limitation, the costs and fees of Agent's legal counsel.
Section V.4. 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.
SECTION V.5. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE
IN HOUSTON, XXXXXX COUNTY, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section V.6. SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of Agent, Issuing Bank, each Lender and each Borrower
and their respective successors and assigns, except that no Borrower may assign
or transfer any of its rights or obligations hereunder without the prior written
consent of Agent.
Section V.7. 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.
Section V.8. EFFECT OF WAIVER. No consent or waiver, express or implied,
by Agent, Issuing Bank or any Lender to or for any breach of or deviation from
any covenant, condition or duty by any Borrower shall be deemed a consent or
waiver to or of any other breach of the same or any other covenant, condition or
duty.
Section V.9. 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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SECTION V.10. ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT AND THE OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written above.
BORROWERS:
HORIZON OFFSHORE CONTRACTORS, INC.
By:
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Xxxxx X. Xxxxx
Executive Vice President
HORIZEN, L.L.C.
By:
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R. Xxxx Xxxxxxxxx
President
HORIZON SUBSEA SERVICES, INC.
By:
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Xxxxx X. Xxxxx
Executive Vice President
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HORIZON VESSELS, INC.
By:
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Xxxxx X. Xxxxx
Executive Vice President
AGENT:
SOUTHWEST BANK OF TEXAS, N.A., as Agent
By:
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Xxxxxxx Xxxxx
Senior Vice President
LENDERS:
SOUTHWEST BANK OF TEXAS, N.A.
By:
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Xxxxxxx Xxxxx
Senior Vice President
DRESDNER BANK LATEINAMERIKA AG
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANK OF SCOTLAND
By:
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Xxxxxx Xxxxxx
Vice President
HIBERNIA NATIONAL BANK
By:
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Xxxx Xxxxxxxxxx
Vice President
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Each of the undersigned Guarantors (a) hereby consents and agrees to this
Amendment, (b) agrees that all references to the Loan Agreement contained in the
Guaranty executed by such Person shall constitute references to such Loan
Agreement as amended by the Amendment and as the same may be further amended,
and (c) agrees that the Guaranty executed by such Person shall remain in full
force and effect and shall continue to be the legal, valid and binding
obligations of such Guarantor, enforceable against such Guarantor in accordance
with its terms and shall evidence such Guarantor's guaranty of the Notes as
renewed and extended from time to time.
HORIZON OFFSHORE, INC.
By:
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Xxxxx X. Xxxxx
Executive Vice President
HORIZON OFFSHORE CONTRACTORS, LTD.
By:
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Xxxxx X. Xxxxx
Director
ECH OFFSHORE, S. DE X.X. DE C.V.
By:
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R. Xxxx Xxxxxxxxx
Sole Manager
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