AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 2 (this “Amendment”), dated as of July 23, 2010, to that certain Second
Amended and Restated Credit Agreement, dated as of June 11, 2010 (as amended, restated, amended
and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Trico Marine Services, Inc. (the “Borrower”), the guarantors party
thereto from time to time (the “Guarantors”), the lenders party thereto from time to time
(the “Lenders”), Nordea Bank Finland plc, New York Branch (the “Collateral Agent”),
and Obsidian Agency Services, Inc. (the “Administrative Agent”). Capitalized terms used
but not defined herein have the meanings provided in the Credit Agreement.
R E C I T A L S
WHEREAS, the parties hereto desire to make certain amendments to certain provisions of the
Credit Agreement as specified herein, pursuant to and in accordance with Section 14.12 of the
Credit Agreement;
WHEREAS, the Lenders party hereto constitute the Required Lenders under the Credit Agreement;
and
NOW, THEREFORE, based upon the above Recitals, the mutual premises and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. AMENDMENT.
(a) Section 10.13 of the Credit Agreement is hereby amended to amend and restate clause (ii)
contained therein in its entirety to read as follows:
“(ii) this Agreement and the other Credit Documents, the Senior Notes, the
Trico Marine Cayman Intercompany Loan, the TMS Intercompany Indebtedness,
the Trico Supply Intercompany Loan Documentation, the Trico Shipping Senior
Secured Notes Documentation (as in effect on July 23, 2010) and the New
Trico Shipping Working Capital Credit Facility (as in effect on July 23,
2010),”
(b) Section 12.01 of the Credit Agreement is hereby amended to amend and restate the first
sentence thereof in its entirety to read as follows:
“The Lenders hereby irrevocably designate and appoint Obsidian Agency
Services, Inc., as Administrative Agent (for purposes of Sections 12.02,
12.03, 12.05, 12.06, 12.07, 12.08, 12.09, 12.10 and Section 14.01, the term
“Administrative Agent” also shall include Nordea Bank Finland plc,
New York Branch (and/or any of its affiliates) in its capacity as Collateral
Agent, and any successor Collateral Agent, including for the avoidance of
doubt, Obsidian Agency Services, Inc. (and/or any of its affiliates), in its
capacity as Collateral Agent, in each case, pursuant to the Security
Documents, this Agreement and the financings contemplated hereby) to act as
specified herein and in the other Credit Documents.”
(c) Section 12.07 of the Credit Agreement is hereby amended to amend and restate the first
sentence thereof in its entirety to read as follows:
“The Administrative Agent, in its capacity as a Lender, shall have all
rights and powers specified herein for a “Lender” and may exercise any such
rights and powers as though it were not performing the duties specified
herein; and the term “Lender,” “Required Lenders,” “holders of Notes” or any
similar terms shall, unless the context clearly indicates otherwise, include
the Administrative Agent in its respective individual capacities.”
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, all provisions of the Credit Agreement shall remain in
full force and effect. After this Amendment becomes effective, all references to the Credit
Agreement and corresponding references thereto or therein such as “hereof”, “herein”, or words of
similar effect referring to the Credit Agreement shall be deemed to mean the Credit Agreement as
amended hereby. This Amendment shall not be deemed to expressly or impliedly waive, amend or
supplement any provision of the Credit Agreement other than as expressly set forth herein.
SECTION 3. REPRESENTATIONS.
The Borrower and each of the Guarantors represents and warrants as of the date of this
Amendment as follows:
(i) it is duly incorporated or organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization;
(ii) the execution, delivery and performance by it of this Amendment and the Credit
Agreement as amended hereby are within its powers, have been duly authorized, and do not
contravene (A) its charter, by-laws, or other organizational documents, or (B) any
applicable law;
(iii) no consent, license, permit, approval or authorization of, or registration,
filing or declaration with any governmental authority, is required in connection with the
execution, delivery, performance, validity or enforceability of this Amendment and the
Credit Agreement as amended hereby by or against it;
(iv) this Amendment has been duly executed and delivered by it;
(v) each of this Amendment and the Credit Agreement as amended hereby constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity; and
(vi) no Default or Event of Default has occurred and is continuing.
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SECTION 4. LEGAL FEES.
The Borrower covenants and agrees to pay in full, to the extent invoiced, on or prior to the
date of the execution of this Amendment, all reasonable legal fees of Xxxxxx & Xxxxxxx LLP, counsel
to the Administrative Agent, incurred in connection with the execution of this Amendment.
SECTION 5. CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Amendment is conditioned upon delivery of duly executed signature
pages by all parties hereto to the Administrative Agent.
SECTION 6. GENERAL RELEASE.
In consideration of, among other things, the execution and delivery of this Amendment by the
Administrative Agent and the Lenders, and the accommodations to the Borrower and the other Credit
Parties set forth herein, each of the Borrower and the other Credit Parties, on behalf of itself
and its successors and assigns (collectively, the “Releasors”), hereby forever waives,
releases and discharges to the fullest extent permitted by law, and hereby agrees to hold each
Releasee (as defined below) harmless from, any and all claims (including, without limitation,
crossclaims, counterclaims, rights of set-off and recoupment), causes of action, demands, suits,
costs, expenses and damages (collectively, the “Claims”), that any Releasor now has, of
whatsoever nature and kind, whether known or unknown, whether arising at law or in equity, against
any or all of the Administrative Agent, the Collateral Agent, and/or the Lenders, in each case, in
any capacity and their respective affiliates, shareholders and “controlling persons” (within the
meaning of the federal securities laws), and their respective successors and assigns and each and
all of the officers, directors, employees, consultants, agents, attorneys and other representatives
of each of the foregoing (collectively, the “Releasees”), based in whole or in part on
facts, whether or not now known, existing on or before the date hereof. The execution by the
Borrower and the Credit Parties hereof shall constitute a ratification, adoption, and confirmation
by the Borrower and the other Credit Parties of the foregoing general releases of all Claims
against any Releasee which are based in whole or in part on facts, whether or not now known or
unknown, existing on or prior to the date hereof. In entering into this Amendment, the Borrower
and the other Credit Parties have consulted with, and been represented by, legal counsel and
expressly disclaim any reliance on any representations, acts or omissions by any of the Releasees
and hereby agree and acknowledge that the validity and effectiveness of the releases set forth
above do not depend in any way on any such representations, acts and/or omissions or the accuracy,
completeness or validity hereof. The provisions of this Section shall survive the termination of
the Credit Agreement (as amended hereby) and the other Credit Documents and payment in full of the
Obligations.
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SECTION 7. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts (including by facsimile), and
by the different parties hereto on the same or separate counterparts, each of which shall be deemed
to be an original instrument but all of which together shall constitute one and the same agreement.
(b) The descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as provided in the Credit
Agreement.
(d) The failure or unenforceability of any provision hereof shall not affect the other
provisions of this Amendment.
(e) Whenever the context and construction so require, all words used in the singular number
herein shall be deemed to have been used in the plural number, and vice versa, and the masculine
gender shall include the feminine and neuter and the neuter shall include the masculine and
feminine.
(f) The Credit Agreement as amended by this Amendment represents the final agreement among the
parties with respect to the matters set forth therein and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements among the parties. There are no unwritten
oral agreements among the parties with respect to such matters.
(g) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH
IN THE CREDIT AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF
THE CREDIT AGREEMENT.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
| TRICO MARINE SERVICES, INC., | ||||||
| as the Borrower | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President & Chief Operating Officer | ||||||
| TRICO MARINE ASSETS, INC., | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President | ||||||
| TRICO MARINE OPERATORS, INC., | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President | ||||||
| TRICO MARINE INTERNATIONAL, INC., | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President | ||||||
| TRICO MARINE SERVICES (HONG KONG) LIMITED, as a Guarantor | ||||||
| By: | Trico Marine Assets, Inc., its Sole Member | |||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President | ||||||
Amendment No. 2
| COASTAL INLAND MARINE SERVICES LTD. | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: Director | ||||||
| SERVICIOS DE APOYO MARITIMO DE MEXICO, S. DE X.X. DE C.V., as a Guarantor | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: Manager | ||||||
| TRICO SERVICOS MARITIMOS LTDA. | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Title: General Manager | ||||||
| TRICO MARINE CAYMAN, L.P. as a Guarantor | ||||||
| By: | Trico Holdco LLC, its general partner | |||||
| By: | Trico Marine Services, Inc., its sole member | |||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President & Chief Operating Officer | ||||||
| TRICO HOLDCO LLC as a Guarantor | ||||||
| By: | Trico Marine Services, Inc., its sole member | |||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: President & Chief Operating Officer | ||||||
Amendment No. 2
| TRICO INTERNATIONAL HOLDINGS B.V. | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxx
|
|||||
| Title: Director A | ||||||
| TRICO MARINE INTERNATIONAL HOLDINGS B.V., | ||||||
| as a Guarantor | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxx
|
|||||
| Title: Director A | ||||||
Amendment No. 2
| SPECIAL VALUE CONTINUATION PARTNERS, LP, as Lender |
||||||
| XXXXXXXXXX OPPORTUNITIES PARTNERS V, LP, as Lender |
||||||
| XXXXXXXXXX DIP OPPORTUNITY FUND, LLC, as Lender |
||||||
| By: Xxxxxxxxxx Capital Partners, LLC, Investment Manager of each of the above companies | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Partner | ||||||
| OBSIDIAN AGENCY SERVICES, INC., | ||||||
| as Administrative Agent | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President | ||||||
Amendment No. 2
