Exhibit 10.18
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AMENDMENT NO. 1
TO
CREDIT AGREEMENT
DATED APRIL 29, 1998
PROVIDING FOR A
US$25,000,000
REVOLVING CREDIT FACILITY
MADE AVAILABLE TO
XXXXXX OFFSHORE LLC
Arranged By
NEDSHIP BANK N.V.
AND
MEESPIERSON CAPITAL CORP.
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December 9, 1999
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is
made as of the 9th day of December, 1999 by and among (i) XXXXXX OFFSHORE
LLC, a limited liability company organized under the laws of the State of
Delaware (the "Borrower"), (ii) NEDSHIP BANK N.V. ("Nedship") and MEESPIERSON
CAPITAL CORP. ("MeesPierson"), as co-arrangers (in such capacity the
"Arrangers"), (iii) the banks and financial institutions whose names and
addresses are set out in Schedule 1 to the Credit Agreement (together with
any assignee pursuant to Section 10 of the Credit Agreement (the "Lenders",
and each a "Lender"), (iv) Nedship, as documentation agent (in such capacity
the "Documentation Agent") and security trustee (in such capacity the
"Security Trustee") for the Lenders and (v) MeesPierson, as administrative
and paying agent (in such capacity and any successor thereto appointed
pursuant to Section 15.12 of the Credit Agreement ("Administrative Agent",
and together with the Documentation Agent, the "Agents") for the Lenders, and
amends and is supplemental to the Credit Agreement dated April 29, 1998 (the
"Credit Agreement") made by and among (1) the Borrower, (2) the Lenders, (3)
the Arrangers and (4) the Agents.
WITNESSETH THAT:
WHEREAS, pursuant to the Credit Agreement, the Lenders made
available to the Borrower a credit facility in the maximum principal amount of
U.S.$25,000,000 (the "Original Credit Facility") the proceeds of which were
utilized as provided therein;
WHEREAS, as a condition precedent to the Lenders making the
Original Credit Facility available to the Borrower, Xxxxxx Columbus LLC, a
limited liability company organized under the laws of the State of Delaware
("Xxxxxx Columbus"), and Xxxxxx Magellan LLC, a limited liability company
organized under the laws of the State of Delaware ("Xxxxxx Magellan," and
together with Xxxxxx Columbus, the "Guarantors" and each a "Guarantor," and
the Guarantors together with the Borrower, the "Subject Companies" and each a
"Subject Company"), entered into the Guaranty dated May 28, 1999 (the
"Guaranty") in favor of the Security Trustee;
WHEREAS, the Borrower has requested, and the Lenders have
agreed, subject to the terms and conditions herein contained, (a) to increase
the Original Credit Facility by U.S.$15,000,000 (the "Additional Credit
Facility Amount") to U.S.$40,000,000 (the "Credit Facility") and (b) to
extend the Maturity Date (as defined in the Credit Agreement) of the Credit
Facility by two years, to December 31, 2006.
NOW, THEREFORE, in consideration of the premises and such other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, it is hereby agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, words and
expressions defined in the Credit Agreement shall bear the same meanings when
used herein.
2. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
reaffirms, as of the date hereof, each and every representation and warranty
made thereby in the Credit Agreement, the Note and the Security Documents
(updated MUTATIS MUTANDIS).
3. NO DEFAULTS. The Borrower hereby represents and warrants
that as of the date hereof there exists no Event of Default or any condition
which, with the giving of notice or passage of time, or both, would
constitute an Event of Default.
4. PERFORMANCE OF COVENANTS. The Borrower hereby reaffirms
that it has duly performed and observed the covenants and undertakings set
forth in the Credit Agreement and the Security Documents to which it is a
party, on its part to be performed, and covenants and undertakes to continue
to duly perform and observe such covenants and undertakings, as
amended hereby, so long as the Credit Agreement shall remain in effect.
5. AMENDMENT TO THE CREDIT AGREEMENT. Subject to the terms
and conditions of this Amendment, the Credit Agreement is hereby amended and
supplemented as follows:
(a) Section 1.1 is amended as follows
(i) in the definition of "Credit Facility," the
words "Twenty-Five Million Dollars
($25,000,000)" shall be deleted and replaced
with the words "Forty Million Dollars
($40,000,000)";
(ii) in the definition of "Margin", the figure
"1.25%" shall be deleted and replaced with
the figure "1.375%";
(iii) in the definition of "Maturity Date," the
year "2004" shall be deleted and replaced
with the year "2006";
(iv) immediately after the definition of
"Required Percentage" insert the following
definition:
"Scheduled Reduction Dates" means each of
the dates falling at quarterly intervals
beginning on March 31, 2003 and ending on
December 31, 2006;
(v) immediately after the definiton of
"Security Party(ies)" insert the following
definition:
"Senior Notes" means the $110,000,000
aggregate principal amount of 10% Senior
Notes due 2008 issued by the borrower
pursuant to the Indenture;
(b) Section 4.2 is amended by adding the following
sub-section (e) at the end thereof:
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"(e) if, after giving PRO FORMA effect to the Advance
proposed to be drawn down, the Credit Facility
Balance exceeds Twenty Five Million Dollars
($25,000,000), the Administrative Agent shall have
received evidence satisfactory to it that not less
than Fifteen Million Dollars ($15,000,000) in
principal amount of the Senior Notes have been
converted into equity securities of the Borrower on
such terms and conditions as are reasonably
satisfactory to the Agents."
(c) Section 5 is amended by adding the following
sub-section 5.5 at the end thereof:
"5.5 SCHEDULED REDUCTIONS OF THE CREDIT FACILITY. The
Credit Facility shall be reduced on each of the first
eight Scheduled Reduction Dates by One Million Eight
Hundred Seventy Five Thousand Dollars ($1,875,000),
and on each of the succeeding eight Scheduled
Reduction Dates by Three Million One Hundred Twenty
Five Thousand Dollars ($3,125,000). On each
Scheduled Reduction Date, each Lender's Commitment
shall be reduced by an amount equal to (i) the ratio
of such Lender's Commitment to the aggregate of the
Commitments on such date, multiplied by (ii) the
amount by which the total Credit Facility is to be so
reduced on such date. On each Scheduled Reduction
Date the Borrower shall, if necessary, prepay the
Credit Facility in the amount required so that the
Credit Facility Balance shall not exceed the
aggregate of the Commitments as reduced pursuant to
this Section 5.5."
(d) Section 9.3 is amended by replacing the words "one
hundred thirty percent (130%) of the Credit Facility
Balance" in the fourth and fifth lines with the words
"two hundred percent (200%) of the Credit Facility."
6. NO OTHER AMENDMENT. All other terms and conditions of the
Credit Agreement shall remain in full force and effect and the Credit
Agreement shall be read and construed as if the terms of this Agreement were
included therein by way of addition or substitution, as the case may be.
7. CONDITIONS. The effectiveness of this Amendment is subject
to the following terms and conditions:
(a) the Agents shall have received the following documents in
form and substance satisfactory to the Agents and their legal advisers:
(i) copies, certified as true and complete by an officer of
each of the Subject Companies, of the resolutions of the
Management Committee of such Subject Company evidencing
approval of this Amendment and authorizing
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an appropriate officer or officers or attorney-in-fact or
attorneys-in-fact to execute the same on behalf of such Subject
Company, or other evidence of such approvals and authorizations as
shall be acceptable to the Agents and their legal advisers;
(ii) copies, certified as true and complete by an officer of the
Subject Companies or other party acceptable to the Agents and
their legal advisers, of all documents evidencing any other
necessary action (including actions by such parties thereto other
than such Subject Company as may be required by the Agents),
approvals or consents with respect to this Amendment;
(iii) copies, certified as true and complete by an officer of each of
the respective Subject Company of the certificate of formation of
and operating agreement (or equivalent instruments) thereof;
(iv) certificate of the Secretary of the Borrower certifying that it
legally and beneficially owns, directly or indirectly, all of the
issued and outstanding membership interests of each of the other
Subject Companies and that such membership interests are free and
clear of any liens, claims, pledges or other encumbrances
whatsoever;
(v) certificate of the Secretary of each Subject Company (other than
the Borrower) certifying as to the record ownership of all of its
issued and outstanding membership interests or a certificate
certifying that there have been no changes in the constitutional
documents of such Subject Company;
(vi) an incumbency certificate of each Subject Company;
(vii) certificates of the jurisdiction of formation of each Subject
Company as to the good standing thereof;
(viii) legal opinions addressed to the Agents from (i) Gardere Xxxxx
Xxxxxx & Xxxxx, L.L.P., counsel for the Subject Companies, and
(ii) Xxxxxx & Xxxxxx L.L.P., special counsel to the Agents, in
each case in such form as the Arrangers may require, as well as
such other legal opinions as the Arrangers shall have required as
to all or any matters under the laws of the United States of
America, the State of Delaware, the State of New York, the State
of Texas and the Republic of Panama covering the representations
and conditions which are the subjects of Sections 2 and 4.1 of the
Credit Agreement.
(b) The Borrower shall have executed an amended and restated promissory
note to the order of the Administrative Agent evidencing the increased amount of
the Credit Facility;
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(c) Each Guarantor shall have executed the Consent and
Reaffirmation Agreement annexed hereto and an amendment to the first
preferred naval Panamanian mortgages on Unit owned thereby substantially in
the form of Exhibit B hereto and such Amendment shall have been duly
provisionally registered in accordance with Panamanian law; and
(d) The Administrative Agent shall have received evidence
satisfactory to the Arrangers and to their legal advisor that, save for the
liens created by the Mortgages and the Assignments, there are no liens,
charges or encumberances of any kind whatsoever on any of the Units or on
their respective earnings except as permitted hereby or by any of the
Security Documents; and
(e) The Borrower shall have paid to the Agents a fee equal to
.50% of the Additional Credit Facility, such fee to be divided evenly between
the Agents and payable upon signing of this Amendment.
8. UNDERTAKING. Within ninety (90) days of the date of
provisional registration of the amended mortgages under Panamanian Flag, the
Borrower shall cause the same to be permanently registered and recorded under
such flag and deliver to the Administrative Agent a favorable opinion, in
form and substance satisfactory to the Arrangers, of Panamanian counsel
satisfactory to the Arrangers with respect thereto; and
9. OTHER DOCUMENTS. By the execution and delivery of this
Amendment, the Borrower hereby consents and agrees that all references in the
Note and the Security Documents to the Credit Agreement shall be deemed to
refer to the Credit Agreement as further amended by this Amendment.
10. FEES AND EXPENSES. The Borrower agrees to pay promptly all
costs and expenses (including reasonable legal fees) of the Agents and any
Lender in connection with the preparation and execution of this Amendment.
11. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
12. COUNTERPARTS. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts each of which, when so executed,
shall be deemed to be an original but all such counterparts shall constitute
but one and the same agreement.
13. HEADINGS; AMENDMENT. In this Amendment, Section headings
are inserted for convenience of reference only and shall be ignored in the
interpretation of this Amendment. This agreement cannot be amended other than
by written agreement signed by the parties hereto.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Amendment by its duly authorized representative on the day and year
first above written.
XXXXXX OFFSHORE LLC
By [ILLEGIBLE]
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Name:
Title:
NEDSHIP BANK N.V.,
Arranger, Documentation Agent,
Security Trustee and Lender
By /s/ Xxxxxxxx Xxxxxxxxx
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Name: XXXXXXXX XXXXXXXXX
Title: ATTORNEY-IN-FACT
MEESPIERSON CAPITAL CORP.,
Arranger, Administrative Agent and
Lender
By /s/ Xxxxxxxx Xxxxxxxxx
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Name: XXXXXXXX XXXXXXXXX
Title: ATTORNEY-IN-FACT
By /s/ Xxxxxxxx X. Xxxxx
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Name: XXXXXXXX X. XXXXX
Title: ATTORNEY-IN-FACT
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