Exhibit 10.2
THIRD AMENDMENT TO
THIRD AMENDED AND RESTATED
UNDERWRITING AND CONTINUING INDEMNITY AGREEMENT
THIS THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED UNDERWRITING AND CONTINUING INDEMNITY
AGREEMENT, dated as of September 28, 2006 (this “
Amendment ”), is entered into by and among (i) GREAT
LAKES DREDGE & DOCK CORPORATION, a Delaware corporation
(“ HOLDINGS ”), and the SUBSIDIARIES of HOLDINGS
signatories hereto (collectively with HOLDINGS, the “
INDEMNITORS ”), (ii) TRAVELERS CASUALTY AND SURETY
COMPANY, a Connecticut corporation (as assignee of Reliance
Insurance Company, a Pennsylvania corporation, United Pacific
Insurance Company, a Pennsylvania corporation, Reliance National
Insurance Company, a Delaware corporation, and Reliance Surety
Company, a Delaware corporation) (“ TCASC ”),
and (iii) TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a
Connecticut corporation (“ TRAVELERS AMERICA ”
and together with TCASC, “ TRAVELERS
”).
W I T N E S S E T
H:
WHEREAS, the INDEMNITORS and
TRAVELERS are parties to a certain Third Amended and Restated
Underwriting and Continuing Indemnity Agreement dated as of
December 22, 2003, as amended, supplemented or otherwise modified
from time to time (as amended, supplemented and modified, the
“ Agreement ”);
WHEREAS, the INDEMNITORS have
requested TRAVELERS to amend the Agreement; and
WHEREAS, TRAVELERS is willing to
amend the Agreement as provided herein, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of
the premises, and intending to be legally bound hereby, the
INDEMNITORS and TRAVELERS hereby agree as follows:
SECTION 1. DEFINED
TERMS .
Capitalized terms used herein shall,
unless otherwise defined herein, have the meanings provided in the
Agreement.
SECTION 2. AMENDMENTS TO
AGREEMENT REGARDING MERGER .
Subject to satisfaction of the
conditions set forth in Section 5 of this Amendment, the
Agreement is hereby amended as follows:
(a)
The introductory paragraph to the
Agreement is hereby amended to delete the language “GREAT
LAKES DREDGE & DOCK CORPORATION, a Delaware corporation
(“ Holdings ”),” appearing therein and
inserting in lieu thereof “HOLDINGS (as defined
below),”.
(b)
Section 1.1
of the Agreement is hereby amended
to delete the definition of “HOLDINGS” in its entirety
and to replace such definition with the following:
“HOLDINGS” means Great
Lakes Dredge & Dock Corporation, a Delaware corporation, and,
upon the effectiveness of the HOLDINGS MERGER, thereafter means
Great Lakes Dredge & Dock Holdings Corp., a Delaware
corporation (to be renamed “Great Lakes Dredge & Dock
Corporation” immediately following the HOLDINGS
MERGER).
(c)
Section 1.1
of the Agreement is hereby further
amended by inserting the following new definition in the
appropriate alphabetical order:
“HOLDINGS MERGER” means
the merger of Great Lakes Dredge & Dock Corporation, a Delaware
corporation, with and into Great Lakes Dredge & Dock Holdings
Corp., a Delaware corporation and the survivor of such merger, with
such survivor being renamed “Great Lakes Dredge & Dock
Corporation” immediately following such merger.
SECTION 3. AMENDMENTS TO
AGREEMENT REGARDING WELLS FARGO FACILITY .
Subject to satisfaction of the
conditions set forth in Sections 5 and 6 of this
Amendment, the Agreement is hereby amended as follows:
(a)
Section 1.1
of the Agreement is hereby amended
by deleting clause (q) of the definition of “PERMITTED
LIENS” in its entirety and substituting the following in
place thereof:
(q)
(i) LIENS securing payment of DEBT
and CONTINGENT LIABILITIES permitted and described in clause (m) of
Section 6.12 and (ii) LIENS on the RECEIVABLES FINANCING
COLLATERAL granted to secure the RECEIVABLES FINANCING AGREEMENT
or, in the event the RECEIVABLES FINANCING AGREEMENT is no longer
in effect, to secure DEBT and CONTINGENT LIABILITIES permitted and
described in clause (d)(ii) of Section 6.12 ;
(b)
Section 1.1
of the Agreement is hereby further
amended by inserting the following new definitions in the
appropriate alphabetical order:
“RECEIVABLES FINANCING
AGREEMENT” means that certain International Letter of Credit
Agreement by and among HOLDINGS, GLDDC and Wells Fargo HSBC Trade
Bank, N.A., and the documents, instruments and agreements executed
and delivered pursuant ther
