THIRD AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (hereinafter called this "AMENDMENT") is entered into
effective as of March 31, 2000, among (a) TRICO MARINE OPERATORS, INC. ("MARINE
OPERATORS"), a Louisiana corporation, TRICO MARINE ASSETS, INC. ("MARINE
ASSETS"), a Delaware corporation (each of Marine Operators and Marine Assets
a "BORROWER" and, collectively "BORROWERS"), (b)TRICO MARINE SERVICES, INC.
("PARENT"), a Delaware corporation, (c) the financial institutions listed on
SCHEDULE 1.1 of the Agreement (hereinafter described) and such other
financial institutions as may become parties to the Agreement from time to
time (individually a "BANK" and collectively the "BANKS"), (d) XXXXX FARGO
BANK, N.A., as issuing bank ("ISSUING BANK"), and (e) XXXXX FARGO BANK TEXAS,
NATIONAL ASSOCIATION (successor by consolidation to Xxxxx Fargo Bank (Texas),
National Association), as administrative agent for itself, the Issuing Bank
and such financial institutions ("ADMINISTRATIVE AGENT"), CHRISTIANIA BANK OG
KREDITKASSE ASA, New York Branch, as documentation agent for itself and such
financial institutions ("DOCUMENTATION AGENT") (collectively "AGENTS" and/or
"ARRANGERS").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Parent, the Banks, the Issuing Bank, the
Documentation Agent and the Administrative Agent entered into a Third Amended
and Restated Revolving Credit Agreement dated as of July 19, 1999 (hereinafter
called the " RESTATED AGREEMENT"), whereby, upon the terms and conditions
therein stated, the Banks and the Issuing Bank agreed to make available to
the Borrowers a credit facility upon the terms and conditions set forth in
the Agreement; and
WHEREAS, the Borrowers, the Parent, the Banks, the Issuing Bank, the
Documentation Agent and the Administrative Agent entered into (i) a First
Amendment to Third Amended and Restated Revolving Credit Agreement dated as of
September 30, 1999 (the "FIRST AMENDMENT"), and (ii) a Second Amendment to
Third Amended and Restated Revolving Credit Agreement dated as of December 31,
1999 (the "SECOND AMENDMENt"); and
WHEREAS, the Restated Agreement, as amended by the First Amendment and
Second Amendment, is hereinafter called the "AGREEMENT"; and
WHEREAS, the Company has requested that the Banks, the Issuing Bank and
the Agents agree to certain amendments to the Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties to this Amendment hereby agree as
follows:
SECTION 1. TERMS DEFINED IN AGREEMENT. As used in this Amendment, except
as may otherwise be provided herein, all capitalized terms which are defined in
the Agreement shall have the same meaning herein as therein, all of such terms
and their definitions being incorporated herein by reference.
SECTION 2. AMENDMENTS TO AGREEMENT. The Agreement hereby is amended as
follows:
(a) SECTION 10.3 of the Agreement hereby is amended by adding the
following sentence immediately after the first sentence thereof:
"For purposes of making the calculations set forth in the preceding
sentence, Tangible Net Worth shall be determined excluding the effect of
cumulative foreign currency translation adjustment calculated in accordance
with GAAP and set forth in the stockholders' equity section of the Parent
and Borrowers' financial statements."
SECTION 3. CONDITIONS OF EFFECTIVENESS.
(a) The Administrative Agent, the Issuing Bank and the Banks have
relied upon the representations and warranties in this Amendment in agreeing
to the amendments to the Agreement set forth herein and the amendments to the
Agreement set forth herein are conditioned upon and subject to the accuracy of
each and every representation and warranty of each of the Borrowers and the
Parent made or referred to herein, and performance by each of the Borrowers and
the Parent of its obligations to be performed under the Agreement on or before
the date of this Amendment (except to the extent amended herein).
(b) The amendments to the Agreement set forth herein are further
conditioned upon the Borrowers having paid all accrued and unpaid legal fees
and expenses referred to in SECTION 16 of the Agreement and SECTION 7 hereof.
(c) The amendments to the Agreement set forth herein shall become
effective as of March 31, 2000 when the conditions in this Section 3 have been
satisfied and when the Administrative Agent shall have received this Amendment,
executed by the Borrowers, the Parent and the Majority Banks.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS AND PARENT.
The Borrowers and Parent jointly and severally represent and warrant to the
Administrative Agent, the Issuing Bank and each Bank, with full knowledge that
the Administrative Agent, the Issuing Bank and each Bank is relying on the
following representations and warranties in executing this Amendment, as
follows:
(a) Each of the Borrowers and the Parent has corporate power and
authority to execute, deliver and perform this Amendment, and all corporate
action on the part of each of the Borrowers and the Parent requisite for the
due execution, delivery and performance of this Amendment has been duly and
effectively taken. Each of the undersigned officers of the Borrowers and the
Parent executing this Amendment represent and warrant that he has full power
and authority to execute and deliver this Amendment on behalf of the Borrowers
and the Parent respectively, that such execution and delivery has been duly
authorized by each respective Board of Directors and that the resolutions
previously delivered to the Administrative Agent on February 15, 2000, in
connection with the execution and delivery of the Second Amendment are and
remain in full force and effect and have not been altered, amended, or
repealed in anywise.
(b) The Agreement as amended by this Amendment and the Loan
Documents and each and every other document executed and delivered in
connection with this Amendment to which any of the Borrowers or the Parent,
or any Subsidiary thereof, is a party constitute the legal, valid and binding
obligations of such Person to the extent it is a party thereto, enforceable
against such Person in accordance with its respective terms.
(c) This Amendment does not and will not violate any provisions of
the articles or certificate of incorporation or bylaws of any of the Borrowers
or the Parent, or any contract, agreement, instrument or requirement of any
Governmental Authority to which any such Person is subject. The execution of
this Amendment by each of the Borrowers and the Parent will not result in the
creation or imposition of any lien upon any properties of any of the Borrowers
or the Parent, other than those permitted by the Agreement and this Amendment.
(d) The execution, delivery and performance by each of the
Borrowers and the Parent of this Amendment do not require the consent or
approval of any other Person, including, without limitation, any regulatory
authority or governmental body of the United States of America or any state
thereof or any political subdivision of the United States of America or any
state thereof.
(e) The annual audited consolidated balance sheet of the Parent and
the Borrowers as of December 31, 1999, the related consolidated statements of
earnings, capital accounts, and cash flows for the quarter then ended which
have been furnished to the Administrative Agent, the Issuing Bank and the
Banks, fairly present the financial condition of the Parent and the Borrowers
as at such date and the results of the operations of the Parent and the
Borrowers for the periods ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent basis, and
since December 31, 1999 there has been no material adverse change in such
condition or operations.
(f) Each of the Borrowers and the Parent has performed and complied
with all agreements and conditions contained in the Agreement required to be
performed or complied with by each such Person prior to or at the time of
delivery of this Amendment.
(g) No Default or Event of Default exists and, after giving effect
to this Amendment, no Default or Event of Default will exist and all of the
representations and warranties contained in the Agreement and all instruments
and documents executed pursuant thereto or contemplated thereby are true and
correct in all material respects on and as of this date.
(h) Nothing in this Section 4 of this Amendment is intended to
amend any of the representations or warranties contained in the Agreement or
of the Loan Documents to which any of the Borrowers or the Parent or any
Subsidiary thereof is a party.
SECTION 5. REFERENCE TO AND EFFECT ON THE AGREEMENT.
(a) Upon the effectiveness of Sections 1 and 2 hereof, on and after
the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import, shall mean and be a
reference to the Agreement as amended hereby.
(b) Except as specifically amended by this Amendment, the Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
SECTION 6. NO WAIVER. Except as specifically amended hereby, each of the
Borrowers and the Parent agrees that no Event of Default and no Default has
been waived or remedied by the execution of this Amendment by the
Administrative Agent, the Issuing Bank and the Banks and any such Default or
Event or Default heretofore arising and currently continuing shall continue
after the execution and delivery hereof.
SECTION 7. COST, EXPENSES AND TAXES. Each of the Borrowers and the
Parent agrees to pay on demand all reasonable costs and expenses of the
Administrative Agent, the Issuing Bank and the Banks in connection with the
preparation, reproduction, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, including
reasonable attorneys' fees and out-of-pocket expenses of the Administrative
Agent, the Issuing Bank and the Banks. In addition, each of the Borrowers and
the Parent shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution and delivery, filing
or recording of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save each of the Administrative Agent, the
Issuing Bank and the Banks harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes or fees.
SECTION 8. EXTENT OF AMENDMENTS. Except as otherwise expressly provided
herein, the Agreement and the other Loan Documents are not amended, modified
or affected by this Amendment. Each of the Borrowers and the Parent ratifies
and confirms that (i) except as expressly amended hereby, all of the terms,
conditions, covenants, representations, warranties and all other provisions
of the Agreement remain in full force and effect, (ii) each of the other
Loan Documents are and remain in full force and effect in accordance with
their respective terms, and (iii) the Collateral is unimpaired by this
Amendment.
SECTION 9. WAIVERS AND RELEASE OF CLAIMS. As additional consideration
for the execution, delivery, and performance of this Amendment by the parties
hereto and to induce each of the Administrative Agent, the Issuing Bank and
the Banks to enter into this Amendment, each of the Borrowers and the Parent
represents and warrants that none of the Borrowers and the Parent know
of any facts, events, statuses or conditions which, either now or with the
passage of time or the giving of notice, or both, constitute or will
constitute a basis for any claim or cause of action against any of the
Administrative Agent, the Issuing Bank and the Banks or any defense,
counterclaim or right of setoff to the payment or performance of any
obligations or indebtedness of any of the Borrowers or the Parent to any of
the Administrative Agent, the Issuing Bank or the Banks, and in the event any
such facts, events, statuses or conditions exist or have existed, whether
known or unknown, WHETHER DUE TO THE ADMINISTRATIVE AGENT'S, THE ISSUING
BANK'S OR ANY BANK'S, ANY OF THEIR REPRESENTATIVE'S, AGENT'S, OFFICER'S,
DIRECTOR'S, EMPLOYEE'S, SHAREHOLDER'S, OR SUCCESSOR'S OR ASSIGN'S OWN
NEGLIGENCE, each of the Borrowers and the Parent for each of themselves,
their respective Subsidiaries, their respective representatives, agents,
officers, directors, employees, shareholders, and successors and assigns
(collectively called the "Indemnifying Parties"), hereby fully, finally,
completely, generally and forever releases, discharges, acquits, and
relinquishes the Administrative Agent, the Issuing Bank and each Bank and
each of their respective representatives, agents, officers, directors,
employees, shareholders, and successors and assigns (collectively called the
"Indemnified Parties"), from any and all claims, actions, demands, and causes
of action of whatever kind or character, whether joint or several, whether
known or unknown, WHETHER DUE TO ANY OF THE INDEMNIFIED PARTIES' OWN
NEGLIGENCE, which may have arisen or accrued prior to the date of execution
of this Amendment, for any and all injuries, harm, damages, penalties, costs,
losses, expenses, attorneys' fees, and/or liabilities whatsoever and whenever
incurred or suffered by any of them, including, without limitation, any
claim, demand, action, damage, liability, loss, cost, expense, and/or
detriment, of any kind or character, growing out of or in any way connected
with or inany way resulting from any breach of any duty of loyalty, fair
dealing, care, fiduciary duty, or any other duty, confidence, or commitment,
undue influence, duress, economic coercion, conflict of interest, negligence,
bad faith, violations of the racketeer influence and corrupt organizations
act, intentional or negligent infliction of distress or harm, tortious
interference with contractual relations, tortious interference with corporate
governance or prospective business advantage, breach of contract, failure to
perform any obligation under any of the Loan Documents, deceptive trade
practices, libel, slander, conspiracy, interference with business, usury,
strict liability, lender liability, breach of warranty or representation,
fraud, or any other claim or cause of action (herein being collectively
referred to as "Claims"). IT IS EXPRESSLY AGREED THAT THE CLAIMS RELEASED
HEREBY INCLUDE THOSE ARISING FROM OR IN ANY MANNER ATTRIBUTABLE TO THE
NEGLIGENCE (SOLE, CONCURRENT, ORDINARY, OR OTHERWISE), OR OTHER TORTIOUS
CONDUCT OF ANY OF THE INDEMNIFIED PARTIES (other than any claims arising
solely out of an Indemnified Party's willful misconduct or gross negligence).
Notwithstanding any provision of this Amendment or any other Loan Document,
this Section shall remain in full force and effect and shall survive the
delivery and payment of the Notes, this Amendment and the other Loan
Documents and the making, extension, renewal, modification, amendment or
restatement of any thereof.
SECTION 10. INDEMNIFICATION. As additional consideration to the
execution, delivery, and performance of this Amendment by the parties hereto
and to induce the Administrative Agent, the Issuing Bank and each Bank to
enter into this Amendment, the Indemnifying Parties hereby agree to
indemnify, hold harmless, and defend each of the Indemnified Parties from
and against any and all Claims of any nature or character, at law or in
equity, known or unknown, which may have arisen prior to the date hereof, or
accrued to, or could be claimed or asserted by, any third party prior to the
date hereof, INCLUDING WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR IN
ANY MANNER ATTRIBUTABLE TO THE NEGLIGENCE (SOLE, CONCURRENT, ORDINARY OR
OTHERWISE), OR OTHER TORTIOUS CONDUCT OF ANY OF THE INDEMNIFIED PARTIES
(other than any claims arising solely out of an Indemnified Party's willful
misconduct or gross negligence). Notwithstanding any provision of this
Amendment or any other Loan Document, this Section shall remain in full force
and effect and shall survive the delivery and payment of the Notes,
this Agreement and the other Loan Documents and the making, extension,
renewal, modification, amendment or restatement of any thereof.
SECTION 11. GRANT AND AFFIRMATION OF SECURITY INTEREST. Each of the
Borrowers and the Parent hereby grants a security interest in and lien on the
Collateral to secure payment and performance of the Notes and the obligations
described in the Agreement and all documents and instruments executed in
connection therewith and, each of the Borrowers and the Parent hereby confirms
and agrees that any and all liens, security interests and other security or
Collateral now or hereafter held by the Administrative Agent for the benefit
of, and as representative of, the Issuing Bank and the Banks as security for
payment and performance of the Obligations hereby are renewed and carried
forth to secure payment and performance of all of the Obligations. The
Security Documents are and remain legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their respective terms.
SECTION 12. GUARANTIES. The Parent hereby consents to and accepts the
terms and conditions of this Amendment, agrees to be bound by the terms and
conditions hereof and ratifies and confirms that its Guaranty, executed and
delivered to the Administrative Agent for the benefit of and as representative
of each of the Issuing Bank and the Banks on July 19, 1999, guaranteeing
payment of the Obligations, is and remains in full force and effect and
secures payment of the Obligations, including, among other things, the Notes.
SECTION 13. EXECUTION AND COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and
the same instrument. Delivery of an executed counterpart of the signature
page of this Amendment by facsimile shall be equally as effective as delivery
of a manually executed counterpart of this Amendment.
SECTION 14. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
SECTION 15. HEADINGS. Section headings in this Amendment are included
herein for convenience and reference only and shall not constitute a part of
this Amendment for any other purpose.
SECTION 16. LOAN DOCUMENTS. This Amendment is a Loan Document.
SECTION 17. ARBITRATION. The parties agree to be bound by the terms and
provisions of the arbitration provisions set forth in SECTION 33 of the
Agreement.
SECTION 18. NO ORAL AGREEMENTS. THE AGREEMENT (AS AMENDED BY THIS
AMENDMENT) AND THE OTHER LOAN DOCUMENTS, REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
TRICO MARINE OPERATORS, INC, a
Louisiana corporation
By___________________________________
Name:
Title:
TRICO MARINE ASSETS, INC., a Delaware
corporation
By___________________________________
Name:
Title:
TRICO MARINE SERVICES, INC, a
Delaware corporation
By___________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE].
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION (successor by consolidation to
Xxxxx Fargo Bank (Texas), National
Association), individually and as
Administrative Agent
By___________________________________
Name:
Title:
XXXXX FARGO BANK, N.A., as Issuing Bank
By___________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE].
CHRISTIANIA BANK OG KREDITKASSE
ASA, NEW YORK BRANCH, individually and
as Documentation Agent
By___________________________________
Name:
Title:
By___________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE].
BANK ONE LOUISIANA, N.A., individually
and as Syndication Agent
By___________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
HIBERNIA NATIONAL BANK
By___________________________________
Name:
Title:
