EXHIBIT 10.21
AMENDMENT NO. 5
TO
LOAN AGREEMENT
AMENDMENT NO. 5 ("Amendment No. 5") dated as of June 30, 2000 (the
"Amendment Date") to the Loan Agreement dated as of December 30, 1998, as
amended (the "Loan Agreement"), among HORIZON VESSELS, INC., a Delaware
corporation, HORIZON OFFSHORE CONTRACTORS, INC., a Delaware corporation
(together, the "Borrowers"), HORIZON OFFSHORE, INC., a Delaware corporation (the
"Parent Guarantor"), THE CIT GROUP/EQUIPMENT FINANCING, INC., a New York
corporation ("CIT"), HELLER FINANCIAL LEASING, INC., a Delaware corporation,
U.S. BANCORP LEASING & FINANCIAL, an Oregon corporation, SAFECO CREDIT COMPANY,
INC., a Washington corporation, TRANSAMERICA EQUIPMENT FINANCIAL SERVICE
CORPORATION, a Delaware corporation, PHOENIXCOR, INC., a Delaware corporation,
and DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada corporation (collectively,
the "Lenders") and CIT as Agent for the Lenders (the "Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to the Loan Agreement, the Lenders made available to the
Borrowers a loan facility of up to USD 83,300,000, as evidenced by the amended
and restated secured promissory note of the Borrowers dated November 19, 1999;
and
WHEREAS, the Borrowers wish to make certain repairs, modifications and
upgrades to certain of the Vessels; and
WHEREAS, the Borrowers have requested that the loan facility be increased
up to a maximum amount of USD 91,397,845; and
WHEREAS, the parties wish to amend the Loan Agreement to reflect the
foregoing and to amend certain provisions thereof.
NOW THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree to amend the Loan Agreement as follows:
1. The Definitions of the Loan Agreement are hereby amended as follows:
(a) A new definition of "Fleet Upgrade" is added to the Loan
Agreement and reads as follows:
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"Fleet Upgrade" means a repair, modification or upgrade to a Vessel
in accordance with Schedule A to Amendment No. 5.
(b) A new definition of "Fleet Upgrade Advance" is added to the Loan
Agreement and reads as follows:
"Fleet Upgrade Advance" means an Advance for the purpose of funding
a Fleet Upgrade.
(c) Each reference in the Loan Agreement to "Amendment Documents" is
hereby amended to include the Amendment Documents listed in Section 8.1 of
this Amendment No. 5.
(d) Each reference in the Loan Agreement to the Note shall refer to
the Amended and Restated Secured Promissory Note dated the date hereof by
the Borrowers in favor of the Agent.
(e) The definition of "Commitment" is hereby amended to read as
follows:
"Commitment" means USD 91,397,845.
(f) The definition of "Fixed Rate" is hereby amended to read as
follows:
"Fixed Rate" means the sum of (i) the Treasury Rate, (ii) (1) in the
case of Advances other than Fleet Upgrade Advances, 265 basis
points, and (2) in the case of Fleet Upgrade Advances, 295 basis
points, and (iii) the swap spread on the date the Fixed Rate is
elected by the Borrowers as reported on page 883, or its successor,
of the Dow Jones Telerate System.
2. Section 1.1(c) of the Loan Agreement is hereby amended to read as
follows:
"(c) The Loan, except for Fleet Upgrade Advances, shall be made in
four (4) Advances. Subject to the limitation contained in Section
1.1(a) above, Advances other than Fleet Upgrade Advances shall be in
the following amounts:
(i) First Advance - USD 50,000,000
(ii) Second Advance - USD 5,000,000
(iii) Third Advance - USD 13,800,000
(iv) Fourth Advance - USD 14,500,000
The Fleet Upgrade Advances shall be made from time to time in the
principal amount of no less than USD 500,000 per Fleet Upgrade
Advance, subject to the limitation contained in Section 1.1(a)
above. The aggregate principal amount of Fleet Upgrade Advances
shall not exceed USD 8,097,845."
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3. Section 1.3(a) of the Loan Agreement is hereby amended to read as
follows:
"(a)(i) The Borrowers shall jointly and severally repay the principal
amount of the first Advance in eighty-four (84) consecutive
monthly installments of USD 462,963, the amount of the second
Advance in eighty-four (84) consecutive monthly installments
of USD 46,296, the amount of the third Advance in eighty-four
(84) consecutive monthly installments of USD 127,778, and the
amount of the fourth Advance in seventy-three (73) consecutive
monthly installments of USD 154,490, with each such
installment to be paid by the Borrowers to the Agent on a date
commencing on the day which is thirty (30) days after the date
of such Advance, and on the same day of each month thereafter
and ending on the Maturity Date (each such date a "Payment
Date"); provided, however, that the final installment for each
Advance shall be in an amount sufficient to repay all amounts
of principal for such Advance and, provided further, that the
final payment on the Maturity Date shall be in an amount
sufficient to discharge the accrued and unpaid interest and
principal in respect of the Note.
(ii) The Borrowers shall jointly and severally repay the principal
amount of all outstanding Fleet Upgrade Advances in fifty-nine
(59) equal monthly installments of USD 96,403 each, commencing
January 30, 2001, and a single payment of all remaining
principal of and interest on the Fleet Upgrade Advances on
December 30, 2005."
4. Section 1.4(b) of the Loan Agreement is hereby amended to read as
follows:
(b) The term "Interest Rate" shall mean, for an Interest Period
(as hereinafter defined), an interest rate per annum at the
rate (i) certified by the Lender to be the LIBOR Rate, plus,
for Advances other than Fleet Upgrade Advances, two and
sixty-five hundredths percent (2.65%) or, for Fleet Upgrade
Advances, two and ninety-five hundredths percent (2.95%), or
(ii) if the Borrowers have exercised the option contained in
Section 1.4(f) below, the Fixed Rate.
5. Section 1.3(f)(i) of the Loan Agreement is hereby amended to read as
follows:
(i) If no election is received by the Agent, the Borrowers
shall pay interest at the LIBOR Rate plus 2.65% for Advances
other than Fleet Upgrade Advances, and at the LIBOR Rate plus
2.95% for the Fleet Upgrade Advances.
6. A new Section 2.2(A) is hereby added to the Loan Agreement and reads as
follows:
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Section 2.2A. CONDITIONS TO FLEET UPGRADE ADVANCES. The
Lenders' obligation to make any Fleet Upgrade Advance is
subject to the following conditions having been satisfied in
the opinion of the Lenders on or prior to the date of each
such Advance:
(a) Certification by a Responsible Officer that no Event
of Default or any event which with the giving of notice or the
passage of time would become an Event of Default has occurred
and is continuing;
(b) Certification by a Responsible Officer that (A) each
of the representations and warranties set forth in Article III
of the Loan Agreement are true and correct as of the date the
Fleet Upgrade Advance is requested as if made on such date;
(B) there have been no occurrences which have or would
adversely and materially affect the condition of the Vessels;
(C) the amount of the requested Advance is in accordance with
the plans and specifications for the Fleet Upgrades; and (D)
once the applicable shipyard, contractor or supplier is paid
there will be no liens or encumbrances on the vessel, its hull
or component parts for which the Fleet Upgrade Advance is
being requested, and such certificate shall attach the
invoices and receipts supporting the previous Fleet Upgrade
Advance, if any, to the satisfaction of the Agent;
(c) the Agent shall have received a report, in form and
substance satisfactory to Agent, of an independent surveyor,
inspector or naval architect, certifying that the work to be
paid by the previous Fleet Upgrade Advance, if any, has been
performed to the satisfaction of such inspector, surveyor or
naval architect, the costs of which report shall be borne by
the Borrowers; and
(d) a written report from an appraiser acceptable to the
Agent with respect to the Fleet Upgrades to be financed with
the requested Fleet Upgrade Advance, in form and substance
satisfactory to the Agent.
7. Schedule 1 to the Loan Agreement is hereby replaced with Schedule 1
attached to this Amendment No. 5.
8. CONDITIONS PRECEDENT.
8.1 DOCUMENTS REQUIRED AS CONDITIONS PRECEDENT TO AMENDMENT NO. 5. The
effectiveness of the modifications to the Loan Agreement contemplated by this
Amendment No. 5 is subject to the condition precedent that the Agent shall have
received at or prior to the Amendment Date all of the following, each dated on
or before the Amendment Date and each in form and substance satisfactory to the
Agent and its counsel:
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(a) Each of the following documents (the "Amendment Documents")
shall have been duly authorized and executed with original counterparts
thereof delivered to the Agent:
(i) This Amendment No. 5;
(ii) Amended and Restated Secured Promissory Note;
(iii) Amendment No. 5 to the United States First Preferred
Fleet Mortgage;
(iv) Amendment No. 5 to Vanuatu First Preferred Fleet
Mortgage;
(v) Amendment and Ratification of Guaranty executed by the
Guarantors;
(vi) Ratification of Security Agreement;
(vii) Ratification of Intercreditor Agreement;
(viii) Amendment No. 3 to Deed of Covenants; and
(ix) such further documents as the Lenders may reasonably
request.
(b) The representations and warranties contained in Section 3.1 of
the Loan Agreement shall be true on the Amendment Date with the same
effect as though such representations and warranties had been made on and
as of such date, and no Event of Default specified in Article IV of the
Loan Agreement and no event which, with the lapse of time or the giving of
notice and the lapse of time specified in Article IV of the Loan
Agreement, would become such an Event of Default, shall have occurred and
be continuing.
8.2 WAIVER OF CONDITIONS PRECEDENT. All of the conditions precedent
contained in this Section 8 are for the sole benefit of the Agent and the
Lenders and the Agent may waive any of them in its absolute discretion, and on
such conditions as it deems proper.
9. REPRESENTATIONS OF THE BORROWERS AND GUARANTORS. The Borrowers and the
Guarantors represent and warrant that:
(a) Each of the Borrowers and the Guarantors is a corporation, duly
organized and validly existing in good standing under the laws of the
State of Delaware, and has the requisite power and authority (i) to carry
on its business as presently conducted; and (ii) to enter into and perform
its obligations under the Amendment Documents.
(b) The execution, delivery and performance by each of the Borrowers
and the Guarantors of the Amendment Documents and any other instrument or
agreement provided for by this Amendment No. 5 to which it is a party,
have been duly authorized by all
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necessary corporate action, do not require stockholder approval other than
such as has been duly obtained or given, do not or will not contravene any
of the terms of its Certificate of Incorporation or Bylaws, and will not
violate any provision of law or of any order of any court or governmental
agency or constitute (with or without notice or lapse of time or both) a
default under, or result (except as contemplated by this Amendment No. 5)
in the creation of any security interests, lien, charge or encumbrance
upon any of its properties or assets pursuant to, any agreement, indenture
or other instrument to which it is a party or by which it may be bound
other than is in favor of the Agent; the Amendment Documents have been
duly executed and delivered by the Borrowers and the Guarantors and
constitute the respective legal, valid and binding agreements, enforceable
in accordance with the respective terms thereof as to which each of the
Borrowers and the Guarantors is a party. The enforceability of this
Amendment No. 5, however, is subject to all applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the
rights or creditors and to general equity principles.
(c) Except as set forth in the Loan Agreement, there are no suits or
proceedings pending or to its knowledge threatened against or affecting
any Borrower or Guarantors which if adversely determined would have a
material adverse effect upon its business, financial condition or
operations.
(d) Other than such as have been obtained, no license, consent or
approval of any Governmental Agency or other regulatory authority is
required for the execution, delivery or performance of this Amendment No.
5 or any other Amendment Document or any instrument contemplated herein or
therein. The Borrowers are the holder of all certificates and
authorizations of governmental authorities required by law to enable it to
engage in the business transacted by them.
10. EXPENSES. The Borrowers and the Guarantors agree to promptly, whether
or not the modifications to the Loan Agreement contemplated by this Amendment
No. 5 become effective, (x) reimburse the Agent for all fees and disbursements
of external counsel to the Agent and all reasonable out of pocket fees and
disbursements of the Agent incurred in connection with the preparation,
execution and delivery of this Amendment No. 5 and all other documents referred
to herein, and all amendments or waivers to or termination of this Amendment No.
5 or any agreement referred to herein; and (y) reimburse the Agent for all fees
and disbursements of internal and external counsel to the Agent and all
reasonable out of pocket fees, disbursements and travel-related expenses of the
Agent incurred in connection with the protection of the rights of the Agent
under this Amendment No. 5 and all other documents referred to herein, whether
by judicial proceedings or otherwise. The obligations of the Borrowers and the
Guarantors under this Section 10 shall survive payment of the Loan.
11. Wherever and in each such place the term "Loan Agreement" is used
throughout the Loan Agreement, such term shall be read to mean the Loan
Agreement as amended by this Amendment No. 5.
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12. Except as specifically amended by this Amendment No. 5, all of the
terms and provisions of the Loan Agreement shall remain in full force and
effect.
13. All capitalized terms used herein but not defined herein shall have
the meanings given to them in the Loan Agreement.
14. THIS AMENDMENT NO. 5 TO LOAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
No. 5 to Loan Agreement on the date first written above.
BORROWERS:
HORIZON OFFSHORE CONTRACTORS, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
HORIZON VESSELS, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
PARENT GUARANTOR:
HORIZON OFFSHORE, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
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LENDERS:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
SAFECO CREDIT COMPANY, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
U.S. BANCORP LEASING & FINANCIAL
By:___________________________________
Name:_________________________________
Title:________________________________
HELLER FINANCIAL LEASING, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
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TRANSAMERICA EQUIPMENT FINANCIAL SERVICE
CORPORATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
PHOENIXCOR, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
AGENT:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
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SCHEDULE 1 TO
LOAN AGREEMENT
LENDER PORTION OF COMMITMENT
1. The CIT Group/Equipment
Financing, Inc. USD 25,097,845
2. Heller Financial
Leasing, Inc. USD 15,000,000
3. TransAmerica Equipment
Financial Service Corp. USD 17,000,000
4. U. S. Bancorp Leasing
& Financial USD 10,000,000
5. Safeco Credit Company,
Inc. USD 9,300,000
6. Phoenixcor, Inc. USD 5,000,000
7. Deutsche Financial Services
Corporation USD 10,000,000
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