Dated 24 January 2005
Dated 24 January 2005
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GULF OFFSHORE N.S. LIMITED |
(1) |
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and |
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GULFMARK OFFSHORE, INC. |
(2) |
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and |
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GULF OFFSHORE MARINE INTERNATIONAL, INC. |
(3) |
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and |
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NORDEA BANK FINLAND PLC |
(4) |
___________________________________
SUPPLEMENTAL AGREEMENT
relating to a US$50,000,000 Senior
Secured Revolving Credit Facility
Agreement dated 23 December 2004
___________________________________
XXXXXX XXXX
Contents
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Clause |
Page |
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1 |
Definitions |
1 |
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2 |
Agreement of the Lenders |
2 |
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3 |
Amendments to Principal Agreement |
2 |
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4 |
Representations and warranties |
3 |
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5 |
Conditions |
3 |
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6 |
Confirmations |
3 |
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7 |
Miscellaneous and notices |
3 |
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8 |
Applicable law |
3 |
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Schedule 1 Certificate of Compliance |
5 |
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Page 1
THIS SUPPLEMENTAL AGREEMENT is dated 24 January 2005 and made BETWEEN:
(1) GULF OFFSHORE N.S. LIMITED, as borrower (the "Borrower");
(2) GULFMARK OFFSHORE, INC. as guarantor (the "Guarantor");
(3) GULF OFFSHORE MARINE INTERNATIONAL, INC., as charterer (the "Charterer");
(4) The banks and financial institutions whose names and addresses are set out in
Schedule 1, as lenders (together the "Lenders" and each a "Lender"); and
(5) NORDEA BANK FINLAND PLC, NEW YORK BRANCH, (the "Facility Agent") as facility agent
and security trustee.
WHEREAS:
(A) this Agreement is supplemental to a senior secured revolving credit facility agreement dated 23
December 2004 (the "Principal Agreement") made between the Borrower, the Lenders, the
Guarantor, Nordea Bank Norge ASA as arranger, the Facility Agent and the Security Trustee
relating to a loan of fifty million Dollars ($50,000,000) (the "Loan"), of which the principal amount
outstanding at the date hereof is eight million Dollars ($8,000,000), advanced by the Lenders to
the Borrower; and
(B) the Borrower has requested that the terms contained in clause 10.5.1(a)(i), Schedule 6 and
certain definitions of the Principal Agreement be revised and this Agreement sets out the terms
and conditions upon which the Lenders shall, at the request of the Borrower, agree to such
revision.
NOW IT IS HEREBY AGREED as follows:
1 Definitions
1.1 Defined expressions
Words and expressions defined in the Principal Agreement shall unless the context otherwise
requires or unless otherwise defined herein, have the same meanings when used in this
Agreement.
In this Agreement, unless the context otherwise requires:
"Loan Agreement" means the Principal Agreement as amended by this Agreement; and
"Relevant Parties" means the Borrower, the Guarantor and the Charterer or, where the context
so requires or permits, means any or all of them.
References in the Principal Agreement to "this Agreement" shall, with effect from the date
hereof and unless the context otherwise requires, be references to the Principal Agreement as
amended by this Agreement and words such as "herein", "hereof", "hereunder", "hereafter",
"hereby" and "hereto", where they appear in the Principal Agreement, shall be construed
accordingly.
Clause headings and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement.
Page 2
1.5 Construction of certain terms
Clause 1.4 of the Principal Agreement shall apply to this agreement (mutatis mutandis) as if set
out herein and as if references therein to "this Agreement" were references to this Agreement.
2 Agreement of the Lenders
The Creditors agree with the Borrower that, subject to the terms and conditions of this
Agreement, the Creditors agree to the amendment of the Principal Agreement on the terms set
out in clause 0.
3 Amendments to Principal Agreement
3.1 Amendments
The Principal Agreement shall, with effect from the date hereof, be (and it is hereby) amended
in accordance with the following provisions (and the Principal Agreement (as so amended) will
continue to be binding upon each of the parties hereto upon such terms as so amended):
3.1.1 the definitions of "Relevant Fraction" and "Relevant Insured Amount" shall be deleted in clause
1.2 and the following new definitions inserted in their place:
""Relevant Fraction" shall mean a fraction whose numerator is the Fair Market Value of the
relevant Mortgaged Vessel (in the case of a Mortgaged Vessel that has suffered a Total Loss
or is being sold, prevailing immediately before the Total Loss or sale) and whose
denominator is the aggregate of the Fair Market Values of all the Mortgaged Vessels
(including such Mortgaged Vessel) at the relevant date;
"Relevant Insured Amount" means, in relation to a Mortgaged Vessel as at any relevant
date, an amount in Dollars equal to the Relevant Fraction as at such date of the Total
Commitments as at such date;";
3.1.2 the words "and the Supplemental Agreement" after the words "Collateral Deeds" in the definition
of "Security Documents" in clause 1.2 shall be inserted;
3.1.3 the following new definition of "Supplemental Agreement" shall be inserted in clause 1.2:
""Supplemental Agreement" means the agreement dated 24 January 2005 supplemental to
this Agreement made between each of the parties hereto;";
3.1.4 clause 10.5.1(a)(i) shall be deleted and the following new clause inserted in its place:
"the hull and machinery against fire and usual marine risks (including excess risks) and,
subject to clause 10.5.1(o) war risks, on an agreed value basis, in such amounts (but not in
any event less than, in the case of each Mortgaged Vessel, prior to the 2005 renewal date,
one hundred and twenty five percent (125%) of the Relevant Insured Amount for such
Mortgaged Vessel and on and following the 2005 renewal date, the higher of (A) one
hundred and twenty five percent (125%) of the Relevant Insured Amount for such Mortgaged
Vessel and (B) ninety percent (90%) of its market value as most recently determined in
accordance with clause 10.2.2 provided that such market value will only be tested on the
date of commencement of the next period of the relevant policy) and upon such terms as
shall from time to time be approved in writing by the Security Trustee; and"; and
3.1.5 Schedule 6 shall be deleted and the wording contained in 0 inserted in its place.
Page 3
3.2 Continued force and effect
Save as amended by this Agreement, the provisions of the Principal Agreement shall continue
in full force and effect and the Principal Agreement and this Agreement shall be read and
construed as one instrument.
4 Representations and warranties
Each Relevant Party confirms that the representations and warranties set out in clause 7 of the
Principal Agreement are true and correct as if made at the date of this Agreement with
reference to the facts and circumstances existing at such date.
The agreement of the Lenders referred to in clause 0 shall be further subject to no Default
having occurred and continuing on the date hereof.
6.1 The Guarantor and the Charterer each hereby confirms its consent to the amendments to
the Principal Agreement contained in this Agreement.
6.2 The Relevant Parties each further acknowledges and agrees, for the avoidance of doubt, that
each of the other Security Documents to which it is a party, and its obligations thereunder, shall
remain in full force and effect notwithstanding the amendments made to the Principal
Agreement by this Agreement;
6.3 With effect from the date hereof, references to "the Agreement" or "the Facility Agreement" in
any of the other Security Documents to which each Relevant Party is a party shall henceforth be
a reference to the Principal Agreement as amended by this Agreement and as from time to time
hereafter amended.
The provisions of clause 18 of the Principal Agreement shall extend and apply to the giving or
making of notices or demands hereunder as if the same were expressly stated herein and for
this purpose any notices to be sent to the Charterer shall be sent to the address of the
Charterer referred to in clause 18.1 of the General Assignments.
This Agreement may be executed in any number of counterparts and by the different parties on
separate counterparts, each of which when so executed and delivered shall be an original but
all counterparts shall together constitute one and the same instrument.
This Agreement is governed by and shall be construed in accordance with English law.
8.2 Submission to jurisdiction
Each Relevant Party agrees, for the benefit of the Lenders, that any legal action or proceedings
arising out of or in connection with this Agreement against any Relevant Party or any of their
assets may be brought in the English courts. Each Relevant Party (apart from the Borrower)
irrevocably and unconditionally submits to the jurisdiction of such courts and irrevocably
Page 4
designates, appoints and empowers the Borrower at present of 00 Xxxxxxxxx Xxxx, Xxxxxx,
Xxxxxx XX00 0X0, Xxxxxx Xxxxxxx to receive for it and on its behalf, service of process issued
out of the English courts in any such legal action or proceedings. The submission to such
jurisdiction shall not (and shall not be construed so as to) limit the right of the Lenders to take
proceedings against any of the Relevant Parties in the courts of any other competent jurisdiction
nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not. The parties further agree that
only the Courts of England and not those of any other state shall have jurisdiction to determine
any claim which any of the Relevant Parties may have against the Lenders arising out of or in
connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed
on the date first above written.
Page 5
Schedule 1
Certificate of Compliance
To: Nordea Bank Norge ASA
Middelthuns gate 17
X.X. Xxx 0000 Xxxxxxx
X-0000 Xxxx
Xxxxxx
Attn: Shipping Department
Date: [ ]
Dear Sirs
Certificate of Compliance - US$50,000,000 Credit Facility made available to Gulf Offshore N.S.
Limited (the "Facility Agreement")
Words and expressions defined in the Facility Agreement shall, unless the context otherwise requires
or unless otherwise defined herein, have the same meanings when used in this Certificate of
Compliance.
We refer to clause 10.6 of the Facility Agreement and hereby confirm that on each date of the
calculation specified below in paragraphs 1, 2 and 3 and, during the period which is 12 months prior to
such date, the covenants of the Guarantor under the Facility Agreement were satisfied as follows:
1. CONSOLIDATED EBITDA/ CONSOLIDATED INTEREST EXPENSE
Date of Calculation:_________________
(a) Consolidated EBIT:
(i) Consolidated Net Income USD____________________
Plus
(ii) provisions for taxes based on income USD____________________
Plus
(iii) Consolidated Interest Expense USD____________________
Plus
(iv) amortisation or write-off deferred financing costs to the extent deducted in determining
Consolidated Net Income USD____________________
Plus
(v) losses on sales of assets (excluding sales in the ordinary course of business) and other
extraordinary losses USD____________________
Page 6
Minus
(vi) the sum of the amounts for such period of gains from the sale of assets (excluding sales in
the ordinary course of business) and other extraordinary gains
USD___________________
Total (a) USD___________________
Plus
(b) Depreciation expense USD___________________
Plus
(c) Amortisation Expense USD___________________
Plus
(d) Non-transactional foreign exchange losses (gains) USD_________________
TOTAL A: USD__________________
B CONSOLIDATED INTEREST EXPENSE
(a) Consolidated Interest Expense in accordance with Profit & Loss Statement
USD___________________
Plus
(b) Consolidated Capitalised Interest Expense
USD_________________
TOTAL B: USD_________________
A DIVIDED BY B __________________
REQUIREMENT: [from first Drawdown Date to 30 September 2005: > or = 2.00:1.00] [thereafter: >
or = 2.75:1.00]
2. NET WORTH
Date of Calculation:_________________
NET WORTH AS OF___/___/___: USD_________________
REQUIREMENT:
(a) USD 200,000,000
Plus
(b) fifty percent (50%) of accumulated positive consolidated net income calculated on an annual
basis. USD_________________
(c) one hundred percent (100%) of Net Proceeds from Equity Offerings
USD_________________
Page 7
TOTAL REQUIRED NET WORTH: USD_________________
3. SECURITY VALUE
The Security Value is no less than the Security Requirement.
4. LEVERAGE RATIO
Date of Calculation: _________________
A FUNDED DEBT
(a) Indebtedness for Borrowed Money USD_________________
Plus
(b) Indebtedness of a second person secured by any Encumbrance on any property of GulfMark
Offshore Inc. or any of it subsidiaries, whether or not such Indebtedness has been assumed
USD_________________
TOTAL A: USD__________________
B TOTAL CAPITALISATION
(a) Funded Debt USD__________________
Plus
(b) Net Worth USD__________________
TOTAL B: USD____________________
A DIVIDED BY B ________________________
REQUIREMENT: < or = 0.65:1.00
Yours faithfully,
for and on behalf of
GULFMARK OFFSHORE INC.
____________________________ ____________________________
[Director] [Chief Financial Officer] [Director]
Page 8
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EXECUTED as a DEED |
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/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. X. Xxxxxxxxx |
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/s/ Xxxx Xxx Xxxxx Name: Xxxx Xxx Xxxxx Address: 00000 Xxxxxxxx Xxx, Xxx 000 Occupation: Administrative Assistant |
/s/ Xxxx XxXxxxxx Geddes Name: Xxxx XxXxxxxx Xxxxxx Address: 00 Xxxxxxx Xxxxx Occupation: Accounts Manager |
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EXECUTED as a DEED |
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/s Xxxx Xxx Xxxxx Name: Xxxx Xxx Xxxxx Address: 00000 Xxxxxxxx Xxx., Xxx 000 Occupation: Administrative Assistant |
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EXECUTED as a DEED |
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/s/ Xxxx Xxx Xxxxx Name: Xxxx Xxx Xxxxx Address: 00000 Xxxxxxxx Xxx., Xxx 000 Occupation: Administrative Assistant |
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SIGNED by NORDEA BANK FINLAND PLC |
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