Exhibit 10.3
WAIVER AND AMENDMENT NO. 2
TO LOAN AGREEMENT
DATED MARCH 21, 2003
This Waiver and Amendment No. 2 ("Amendment") to Loan Agreement dated March
21, 2003, as amended by Waiver and Amendment No. 1 thereto dated August 12, 2003
("Loan Agreement"), is entered into this 11th day of November, 2003, by and
between General Electric Capital Corporation, a Delaware corporation ("Lender"),
Torch Offshore, L.L.C., a Delaware limited liability company ("Borrower") and
Torch Offshore, Inc. a Delaware corporation ("Guarantor"). All capitalized terms
not otherwise defined in this Amendment have the meanings ascribed to them in
the Loan Agreement.
WITNESSETH:
A. Borrower is a party to that certain Credit Agreement, as amended by the
First Amendment to Credit Agreement effective as of April 23, 2003, as further
amended by the Waiver and Second Amendment to Credit Agreement dated on or about
August 8, 2003 and the Waiver and Third Amendment to Credit Agreement dated on
or about November 7, 2003 ("Credit Agreement"), by and among Guarantor, Regions
Bank (as Agent) and Regions Bank and Export Development Canada (as Lenders).
B. Certain financial covenants contained in the Credit Agreement have been
amended and compliance with certain covenants in the Credit Agreement has been
waived.
C. Borrower has requested that the parties amend the Loan Agreement to
replace the existing financial covenants therein with the financial covenants
contained in the Credit Agreement and waive compliance under the Loan Agreement
for the same financial covenants with respect to which compliance has been
waived under the Credit Agreement.
D. Lender is willing to waive and amend those financial covenants, subject
to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree
to amend the Loan Agreement as follows:
1. Lender hereby waives compliance by Guarantor with the minimum
Consolidated Current Ratio covenant contained in Section 9(a) of the Loan
Agreement for the fiscal quarter ending on
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September 30, 2003. Guarantor acknowledges and agrees that this waiver of
compliance with the financial covenant contained in Section 9(a) of the Loan
Agreement shall apply only to the fiscal quarter ending on September 30, 2003
and shall not constitute a waiver of compliance for any other fiscal quarter.
2. Section 9(a) of the Loan Agreement is amended and restated to read as
follows:
(a) Guarantor will have and maintain, as of the end of each fiscal quarter,
a Consolidated Current Ratio of at least:
Periods Ending: Ratio:
-------------- -----
On or before December 31, 2003 1.00
From January 1, 2004 to March 31, 2004 1.10
After March 31, 2004 1.30
3. Borrower and Guarantor further acknowledge that Borrower and Guarantor
have asked the Lender to refinance in connection with the acquisition of a
vessel to be named MIDNIGHT WRANGLER, Borrower and Guarantor hereby agree that
if the Lender provides such financing the Borrower and Guarantor will cause the
execution and delivery of such documents as the Lender deems necessary to (a)
grant the Lender a preferred mortgage or other security or leasehold interest
(as determined by Lender) in the MIDNIGHT WRANGLER to secure the Borrower's
obligations under the Loan Agreement, (b) grant the Lender a preferred mortgage
or other security or leasehold interest (as determined by Lender) in the Vessel
(as defined in the Loan Agreement) to secure the payment and performance of any
obligations under any note, mortgage, security agreement or other document
executed in connection with the financing of the MIDNIGHT WRANGLER, (c) make a
default under the Loan Agreement also constitute a default under any mortgage,
security agreement or other document executed in connection with the financing
of the MIDNIGHT WRANGLER, (d) make a default under any such mortgage, security
agreement or other document also constitute a default under the Loan Agreement,
and (e) otherwise fully cross-collateralize and cross-default the Borrower's
obligations under the Loan Agreement with any obligations that may be incurred
by the Borrower or any affiliate of the Borrower in connection with the
financing of the MIDNIGHT WRANGLER. Borrower and Guarantor further acknowledge
and understand that this Amendment does not constitute a commitment by the
Lender nor does it create any obligation on the part of the Lender to make any
loan to Borrower or any affiliate of Borrower or otherwise to provide any
financing in connection with the acquisition of the MIDNIGHT WRANGLER, it being
understood and agreed that the Lender has made no such commitment and is under
no such obligation.
4. Borrower shall pay an amendment fee to Lender with respect to this
Amendment No. 2 for the benefit of Lender, in the amount of $10,000. In
addition, Borrower shall pay all attorneys' fees and costs incurred by Lender in
connection with this Amendment No. 2.
5. BORROWER AND GUARANTOR HEREBY RELEASE LENDER (AS DEFINED IN SECTION 5 OF
THE LOAN AGREEMENT) AND SOLIDARILY AGREE TO HOLD LENDER (AS SO DEFINED) HARMLESS
FROM AND AGAINST ANY AND ALL CLAIMS ARISING PRIOR TO THE EFFECTIVE DATE OF THIS
WAIVER AND AMENDMENT NO. 2 TO LOAN AGREEMENT ARISING OUT OF, RESULTING FROM OR
RELATING TO (A) ANY SECURED OBLIGATIONS OR (B) ANY OF THE TRANSACTION DOCUMENTS.
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6. Except as amended herein, the Loan Agreement is unchanged and remains in
full force and effect, and Borrower specifically acknowledges its continuing
obligations to pay all sums as they become due under the Loan Agreement or any
document related thereto.
7. Except as may be specifically set forth herein, this Waiver and
Amendment No. 2 to Loan Agreement shall not constitute a waiver of any Event(s)
of Default under the Loan Agreement or any documents executed in connection
therewith, all rights and remedies of the Lender are being preserved and
maintained.
8. This Amendment may be executed in counterparts, each of which when so
executed will be deemed to be an original and all of which taken together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized representatives as of the date first above written.
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
BY: /s/ XXXXXXX X. XXXXXXXX
------------------------
Xxxxxxx X. Xxxxxxxx
Risk Analyst
BORROWER:
TORCH OFFSHORE, L.L.C.
BY: /s/ XXXXXX X. XXXXXX
---------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
GUARANTOR:
TORCH OFFSHORE, INC.
BY: /s/ XXXXXX X. XXXXXX
---------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
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