EXHIBIT 10.3
AGREEMENT AND RESTATING AMENDMENT TO SECURITY AGREEMENT
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This AGREEMENT AND RESTATING AMENDMENT TO SECURITY AGREEMENT (this
"Agreement") is entered into as of this 29th day of April, 2003, by and between
Newpark Shipholding Texas, L.P., a Texas limited partnership ("Lender"), and
Newpark Shipbuilding - Brady Island, Inc., a Texas corporation formerly known as
Newpark Shipbuilding and Repair, Inc. ("Borrower"), with reference to the
following facts:
A. Borrower purchased certain assets from Lender pursuant to that certain
Agreement for Purchase and Sale of Assets dated as of August 29, 1996 (the
"Purchase Agreement"), and a portion of the purchase price for the assets
purchased thereunder is represented by that certain Promissory Note dated as of
August 29, 1996, made by Borrower payable to the order of Lender, in the
original amount of $8,534,000 (the "Promissory Note"). In connection therewith,
the parties hereto entered into that certain Prepayment Letter dated as of
August 29, 1996, with respect to prepayment of the Promissory Note (the
"Prepayment Letter").
B. The obligations of Borrower under the Promissory Note, and certain other
obligations, are secured pursuant to (i) that certain Security Agreement, dated
as of August 29, 1996, between Borrower, as debtor, and Lender, as secured party
(the "Security Agreement"), (ii) that certain Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing dated as of August 29, 1996,
executed by Borrower to James A. Johnson, as Trustee, for the benefit of Lender
(the "Deed of Trust"), and (iii) that Certain Second Preferred Fleet Mortgage
dated as of August 29, 1996, executed by Borrower for the benefit of Lender (the
"Ship Mortgage").
C. Lender and Borrower have amended certain of the terms of the Promissory
Note, the Security Agreement and the Prepayment Letter (collectively, as
amended, the "Original Documents") pursuant to a certain First Amendment to
Promissory Note, Security Agreement and Prepayment Letter dated as of February
20, 2001 the ("First Amendment"), and a certain Second Amendment to Promissory
Note, Security Agreement and Prepayment Letter dated as of February 7, 2002 (the
"Second Amendment").
D. The amounts owed under the Promissory Note are guaranteed pursuant to
that certain Guaranty dated as of August 29, 1996, made by First Wave Marine,
Inc., a Delaware corporation ("First Wave"), for the benefit of Lender (the
"First Wave Guaranty").
E. Foothill Capital Corporation, a California corporation ("Foothill"), has
extended a credit facility to First Wave and certain affiliates of First Wave,
including Borrower, pursuant to the terms of that certain Second Amended and
Restated Loan and Security Agreement dated as of February 7, 2002 (as amended
from time to time, the "Foothill Credit Agreement").
F. In connection with the Foothill Credit Agreement, Lender agreed to
subordinate its lien in certain collateral, which it holds as security for
obligations under the Promissory Note and otherwise, to the lien of Foothill in
said collateral, all as more particularly set forth in that certain
Intercreditor Agreement dated as of February 7, 2002, between Foothill and
Lender, as supplemented by that certain letter agreement dated of even date
herewith (collectively, the "Intercreditor Agreement").
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G. First Wave has obtained an additional credit facility from FirWav
Finance, LLC, a Delaware limited liability company, pursuant to a Credit
Agreement dated as of January 24, 2003.
H. Borrower and Lender have agreed to amend the Promissory Note pursuant to
that certain Amended and Restated Promissory Note dated of even date herewith
(the "Restated Promissory Note") in order to, among other things, extend the
maturity date.
I. In connection with the Restated Promissory Note, Borrower and Lender
have further agreed to (i) amend and restate the Prepayment Letter pursuant to
that certain Amended and Restated Prepayment Letter dated of even date herewith
(the "Restated Prepayment Letter"), (ii) amend the Deed of Trust, the Ship
Mortgage and the Security Agreement to provide that each secures the Restated
Promissory Note, and (iii) amend the Security Agreement in order to restate the
amendments made to the Security Agreement pursuant to the First Amendment and
the Second Amendment, all as further described herein.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. In connection with the transactions contemplated by this Agreement,
Borrower and Lender, as applicable, shall execute the following documents:
(a) the Restated Promissory Note;
(b) the Restated Prepayment Letter;
(c) a First Amendment to the Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing, which shall amend the Deed of
Trust to provide that it secures the Restated Promissory Note;
(d) an Amendment and Supplement No. 1 to Second Preferred Fleet
Mortgage, which shall amend the Ship Mortgage to provide that it secures the
Restated Promissory Note; and
(e) a letter agreement regarding the Intercreditor Agreement.
2. If (i) the Restated Promissory Note shall have converted to an
installment payment schedule after the Term Loan Conversion Date (as defined in
the Restated Promissory Note), (ii) the Restated Promissory Note is outstanding
immediately prior to a Disposition of Brady Island, and (iii) a Disposition of
Brady Island occurs, Borrower shall pay Lender an amount equal to one-third
(1/3) of the Excess Net Proceeds, if such amount is a positive number. For the
purposes of this paragraph, the following terms shall have the meanings set
forth below:
"BRADY ISLAND SHIPYARD" means that certain shipyard facility and wastewater
treatment plant located at 8502 Cypress Street, Houston, Texas 77012.
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"DISPOSITION OF BRADY ISLAND" means the sale by Borrower of all of the
tangible assets of the Brady Island Shipyard or the sale by First Wave of all of
its ownership interest in Borrower.
"EXCESS NET PROCEEDS" means an amount equal to the cash proceeds resulting
from the Disposition of Brady Island, minus all expenses incurred in connection
therewith, minus all amounts required to be paid to Foothill Capital Corporation
under the terms of the Intercreditor Agreement, as amended from time to time,
but only to the extent such amounts are attributable to Senior Creditor Priority
Collateral (as defined in the Intercreditor Agreement), and minus the remaining
unpaid principal amount of and accrued but unpaid interest on the Restated
Promissory Note on the date of such disposition.
3. The terms and provisions of the First Amendment and the Second Amendment
are hereby superseded by the terms and provisions of this Agreement in all
respects.
4. The Security Agreement is hereby amended as follows:
(a) All references in the Security Agreement to the Promissory Note are
hereby amended to refer to the Restated Promissory Note.
(b) Except as hereinafter provided, all references in the Security
Agreement to Heller and/or its Credit Agreement with certain affiliates of
Borrower are hereby deleted and shall be of no further force and effect;
provided, however, that the references in the Security Agreement to said Heller
Credit Agreement for the definitions therein shall survive for the limited
purpose of such definitions. Furthermore, all references in the Security
Agreement to the subordination to Heller and its Credit Agreement are hereby
deleted and shall be of no further force and effect.
(c) Section 1.1 of the Security Agreement is hereby amended to insert
the following definitions in alphabetical order:
(i) "Foothill Credit Agreement" means that certain Second Amended
and Restated Loan and Security Agreement dated as of February 7, 2002,
among First Wave Marine, Inc., Borrower and Foothill Capital
Corporation, among others, as amended from time to time.
(ii) "Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of February 7, 2002, between Foothill Capital
Corporation and Lender, as supplemented by that certain letter
agreement between Foothill Capital Corporation and Lender dated as of
April 29, 2003, and as further amended from time to time.
(d) The last phrase of the definition of "Event of Default" in Section
1.1 is hereby amended in full read as follows: "or any item which is an "Event
of Default" under the Foothill Credit Agreement, including without limitation,
the Senior Creditor Agreements (as defined in the Intercreditor Agreement)."
(e) The definition of "Transaction Documents" is hereby amended in full
to read as follows:
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"'TRANSACTION DOCUMENTS' shall mean the Restated Promissory Note,
the Restated Prepayment Letter, this Agreement, the Purchase
Agreement, the Foothill Credit Agreement, any Senior Creditor
Agreements (as defined in the Intercreditor Agreement), and all other
instruments, documents and agreements executed by Borrower or any
Affiliate of Borrower in connection with the transactions contemplated
by any of the foregoing documents, as any of the foregoing documents
have previously been or hereafter may be amended, supplemented or
otherwise modified from time to time."
(f) Section 3 of the Security Agreement is hereby amended in full to
read as follows:
"This Agreement secures the prompt and complete payment and
performance of the obligations of Borrower under all Transaction
Documents (other than the Foothill Credit Agreement and the Senior
Creditor Agreements), all obligations of Borrower now or hereafter
existing under this Agreement, and all renewals, extension,
restructurings and refinancings of any of the above (all such debts,
obligations and liabilities of Borrower being collectively referred to
herein as the 'Secured Obligations')."
(g) Section 17 of the Security Agreement is hereby amended in full to
read as follows:
"Any notice or other thing required or desired to be served, given or
delivered hereunder shall be deemed validly served, given or delivered
upon the deposit thereof in the United States registered or certified
mail, postage prepaid, addressed to the party to be notified as
follows:
If to Lender: NEWPARK SHIPHOLDING TEXAS, L.P.
c/o Newpark Resources, Inc.
3850 N. Causeway Blvd.
Suite 1770
Metairie, Louisiana 70002-1752
Attention: Vice President - Finance
With a copy to: ERVIN, COHEN & JESSUP LLP
9401 Wilshire Boulevard
Ninth Floor
Beverly Hills, California 90212
Attention: Bertram K. Massing, Esq.
If to Borrower: NEWPARK SHIPBUILDING - BRADY ISLAND, INC.
8502 Cypress Street
Houston, Texas 77012
Attention: President
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With a copy to: FIRST WAVE MARINE, INC.
2102 Broadway
Houston, Texas 77012
Attention: General Counsel"
(h) Section 21 of the Security Agreement is hereby amended in full to
read as follows:
"THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES."
(i) Section 25 of the Security Agreement is hereby amended in full to
read as follows:
"THIS AGREEMENT AND THE INDEBTEDNESS SECURED HEREBY ARE SUBJECT TO THE
TERMS AND PROVISIONS OF THE INTERCREDITOR AGREEMENT."
(j) Section 26 of the Security Agreement is hereby deleted in its
entirety.
5. Borrower shall give telephonic, fax and written notice to Lender as soon
as practicable upon the occurrence of an "Event of Default" under the Foothill
Credit Agreement, including under any Senior Creditor Agreements (as defined in
the Intercreditor Agreement), or any event which, with notice or lapse of time
or both, would become an Event of Default thereunder. Such notice shall be given
as follows:
To Lender:
NEWPARK SHIPHOLDING TEXAS, L.P.
c/o Newpark Resources, Inc.
3850 North Causeway Boulevard
Suite 1770
Metairie, Louisiana 70002-1752
Attention: Vice President-Finance
Fax No.: 504 833-9506
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With a mandatory copy to:
ERVIN, COHEN & JESSUP LLP
9401 Wilshire Boulevard
Ninth Floor
Beverly Hills, California 90212
Attention: Bertram K. Massing, Esq.
Fax No.: 301 8592325
6. Borrower hereby waives all claims, if any, that it may have against
Lender for the contracting, charging or receipt of any interest at a rate in
excess of the maximum rate permitted by applicable law.
7. Borrower hereby represents and warrants to Lender that (a) the
execution, delivery and performance of this Agreement and all other documents
executed and delivered in connection herewith have been duly authorized by all
requisite corporate action on the part of Borrower and do not and will not
violate the Articles of Incorporation of Borrower; (b) the representations and
warranties contained in the Security Agreement, as amended hereby, are true and
correct on and as of the date hereof as though made on this date; (c) no Event
of Default under the Security Agreement, as amended hereby, has occurred and is
continuing; and (d) Borrower is full compliance with all covenants and
agreements contained in the Security Agreement, as amended hereby.
8. The terms and provisions of this Agreement shall modify and supersede
all inconsistent terms and provisions set forth in the Security Agreement.
Except as expressly modified and superseded by this Agreement, the Security
Agreement is hereby ratified and confirmed and shall continue in full force and
effect. Borrower and Lender agree that the Security Agreement, as amended
hereby, shall continue to be the legal, valid, binding and enforceable
obligation of Borrower, enforceable against it in accordance with its terms.
9. By its execution hereof, First Wave hereby agrees to cause Borrower to
either (i) pay the Restated Promissory Note in full in accordance with its
terms, (ii) prepay the Restated Promissory Note as provided in the Prepayment
Letter, or (iii) elect to convert the payments due under the Restated Promissory
Note as provided therein, and further acknowledges and agrees as follows:
(a) All references in the First Wave Guaranty to the Security Agreement
are hereby amended to refer to the Security Agreement, as amended by this
Agreement, and all references to the Promissory Note are hereby amended to refer
to the Restated Promissory Note;
(b) The First Wave Guaranty, as amended hereby, remains in full force
and effect in accordance with its terms and is hereby ratified and confirmed in
all respects;
(c) First Wave has no defenses, offsets or claims whatsoever in respect
thereof; and
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(d) First Wave shall not transfer or sell any of its equity interests
in Borrower (other than to a wholly-owned subsidiary of First Wave) without
selling all of its interests in Borrower.
10. This Amendment shall be governed by and construed in accordance with
the internal laws of the State of Texas without regard to conflict of laws
principles.
11. Borrower hereby represents to lender that as of the date hereof, the
unpaid principal amount of the Promissory Note is $8,534,000. Borrower hereby
reaffirms its obligations to pay said amount in accordance with the terms of the
Restated Promissory Note. 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 PROMISSORY NOTE OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES
OF ANY KIND OR NATURE FROM LENDER OTHER THAN PURSUANT TO THE AMENDED PREPAYMENT
LETTER. 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.
12. Borrower shall, concurrently herewith and from time to time hereafter
at the request of Lender, execute and deliver to Lender such documents and
instruments as Lender may request, and shall take such other steps as Lender may
request, in order to evidence and implement the purpose of this Agreement.
13. This Amendment may be executed in counterparts, which together shall
constitute one and the same document.
(Remainder of Page Intentionally Left Blank - Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above.
NEWPARK SHIPHOLDING TEXAS, L.P.,
a Texas limited partnership
by its General Partner
NEWPARK HOLDINGS, INC.
a Louisiana corporation
By: /s/ Matthew W. Hardey
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Matthew W. Hardey
Vice President
NEWPARK SHIPBUILDING - BRADY ISLAND, INC.,
a Texas corporation
By: /s/ Frank R. Pierce
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Name: Frank R. Pierce
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Title: Authorized Signatory
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AGREED TO AND ACCEPTED as of this 29th day of April, 2003, for the limited
purposes of the acknowledgements and agreements set forth in Section 9 of this
Agreement.
FIRST WAVE MARINE, INC.,
a Delaware corporation
By: /s/ Frank R. Pierce
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Name: Frank R. Pierce
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Title: Sr. V.P. and CFO
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