SECOND AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE AGREEMENT
Exhibit
10.2
EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
AND FORBEARANCE AGREEMENT
AND FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE AGREEMENT (this “Second
Amendment”), dated as of June 17, 2010, by and among TRICO MARINE CAYMAN, L.P., a limited
partnership organized under the laws of the Cayman Islands (“Trico Cayman”), TRICO HOLDCO
LLC, a Delaware limited liability company and the general partner of Trico Cayman (“Trico
Holdco”), TRICO SUPPLY AS, a limited company organized under the laws of Norway
(“Holdings”, and together with Trico Cayman and Trico Holdco, the “Holdco
Guarantors”), the Subsidiary Guarantors listed on Schedule IX to the Credit Agreement
(as defined below) (the “Subsidiary Guarantors”), TRICO SHIPPING AS, a limited company
organized under the laws of Norway and a wholly-owned Subsidiary of Holdings (the
“Borrower”), the Lenders party hereto (as defined below) party hereto and NORDEA BANK
FINLAND PLC, NEW YORK BRANCH (“Nordea”), as Administrative Agent (in such capacity, the
“Administrative Agent”). Unless otherwise indicated, all capitalized terms used herein and
not otherwise defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
WITNESSETH:
WHEREAS, the Borrower, the Holdco Guarantors, the Subsidiary Guarantors, the lenders from time
to time party thereto (each, a “Lender” and, collectively, the “Lenders”) and the
Administrative Agent are parties to a Credit Agreement, dated as of October 30, 2009 and amended as
of March 15, 2010 (as further amended, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”);
WHEREAS, the Credit Parties have notified the Lenders that one or more Events of Default (the
“Specified Events of Default”) under the Credit Agreement either have occurred and are
continuing or may occur as a direct or indirect result of (i) an Event of Default under the Parent
Credit Agreement and/or the Indenture, dated as of May 14, 2009 (the “8.125% Indenture”),
between Trico Marine Services, Inc. (the “Parent”), as issuer of the 8.125% Secured
Convertible Debentures due 2013, and Xxxxx Fargo Bank, National Association, as trustee
(“Trustee”) and/or (ii) the commencement of a bankruptcy case by the Parent, Trico Cayman
and/or Trico Holdco under the Bankruptcy Code or any other state or foreign bankruptcy statute; and
WHEREAS, notwithstanding the Specified Events of Default, the Credit Parties have requested,
and those certain Lenders party to this Second Amendment, including by way of joinder hereto (such
Lenders, together with their successors and assigns, collectively the “Specified Senior
Lenders”) are willing, during the Forbearance Period (as defined below), to forbear in certain
respects in the enforcement of certain remedies set forth in the Credit Documents or available to
it at law or in equity, such forbearance to occur strictly on the terms and conditions set forth
herein; and
WHEREAS, the Credit Parties have requested that the Lenders agree to amend the Credit
Agreement and the other Credit Documents as provided herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein and
for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
Credit Parties, and the Lenders hereby agree as follows:
ARTICLE I
ACKNOWLEDGMENTS
Section 1.01 Outstanding Indebtedness. The Credit Parties under the Credit Documents,
without defense, counterclaim or offset of any kind, are indebted and liable to the Lenders in the
aggregate principal amount of (i) approximately $17,600,000.00 in aggregate outstanding principal
amount of Loans plus (ii) approximately the equivalent of $7,770,735.92 in aggregate
outstanding principal amount of Letters of Credit plus (iii) interest thereon and fees,
expenses (including any attorneys’, accountants’, appraisers’ and financial advisors’ fees that are
chargeable or reimbursable under the Credit Documents), charges and other obligations incurred in
connection therewith as provided in the Credit Documents (collectively, the “Outstanding
Indebtedness”), which Outstanding Indebtedness is secured by valid, perfected and enforceable
liens on and security interests in certain real and personal property of the Borrowers and their
Subsidiaries. The Administrative Agent and the Lenders hereby acknowledge and agree that, subject
to the terms hereof and at the request of the Borrower, the Lenders shall continue to make Loans to
the Borrower and/or issue Letters of Credit under the Credit Agreement, in each case as permitted
under and in accordance with the terms of the Credit Agreement.
ARTICLE II
FORBEARANCE; RESERVATION OF RIGHTS;
DEFERRAL OF PRINCIPAL; NOTICE
DEFERRAL OF PRINCIPAL; NOTICE
Section 2.01. Forbearance. Subject to the terms and conditions set forth herein, each
of the Specified Senior Lenders hereby agrees that, during the Forbearance Period, it shall not
exercise or instruct the exercise of, and hereby instructs the Administrative Agent not to
exercise, any of the following remedies:
(i) acceleration of amounts payable by the Borrower under the Credit Documents by
reason of any Specified Event of Default;
(ii) exercise of foreclosure or similar remedies in respect of collateral of any Credit
Party under the Credit Documents by reason of any Specified Event of Default;
(iii) exercise of remedies under or in respect of guarantees made by the Credit Parties
under the Credit Documents by reason of any Specified Event of Default; or
(iv) exercise of any other remedy under the Credit Documents against any Credit Party
occurring solely by reason of a Specified Event of Default.
Section 2.02. Reservation of Rights. Subject to the terms and conditions set forth
herein, each of the Specified Senior Lenders hereby reserves all of its rights, remedies,
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powers
and privileges under the Credit Agreement, the other Credit Documents, any applicable law and
equity and, except as expressly set forth herein, does not waive any Default or Event of Default
which may currently or hereafter exist, and this Second Amendment shall not be construed as a
waiver thereof. This Section 2.02 shall survive the Forbearance Period until the
termination of the Credit Documents and the indefeasible payment in full in cash of all obligations
of the Credit Parties under or in respect of the Credit Agreement and the other Credit Documents.
ARTICLE III
FORBEARANCE TERMINATION EVENTS
Section 3.01. Forbearance Termination Events. The agreement of the Specified Senior
Lenders to forbear from exercising certain remedies against the Credit Parties pursuant to
Article II hereof shall immediately terminate and be of no further force and effect upon
the election of the Required Lenders (the date of such election, the “Forbearance Termination
Date”) (provided that if the event described in clause (i) below occurs, then such
agreement to forbear shall automatically terminate without requiring the election of, or any other
action by, the Required Lenders) at any time after the occurrence of any of the following:
| (i) | the termination of the Noteholder Forbearance; or | ||
| (ii) | the failure of the Borrower or any Subsidiary to comply with the covenants as set forth in Article VI hereof; or | ||
| (iii) | the occurrence of an Event of Default under the Credit Agreement (other than a Specified Event of Default); or | ||
| (iv) | any of the Parent, Trico Marine Assets, Inc. (“TMA”) or Trico Marine Operators, Inc. (“TMO”) shall take any action or join with or support any third party in seeking or taking any action to contest, challenge, avoid, recharacterize, subordinate or in any way impair or adversely affect (any such action, a “Challenge”) Nordea’s lien on the Cash Collateral (as defined in the L/C Cash Collateral Agreement (as defined below)) as security for the Obligations (as defined in the L/C Cash Collateral Agreement) pursuant to the L/C Cash Collateral Agreement; or the Bankruptcy Court shall enter into any order or judgment upholding any Challenge (whether initiated by the Parent, TMA, TMO or any other Person) or authorizing use of the Cash Collateral (as defined in the L/C Cash Collateral Agreement) by the Parent, TMA and/or TMO for any purpose other than to secure the Obligations (as defined in the L/C Cash Collateral Agreement) strictly in accordance with the L/C Cash Collateral Agreement, dated as of June 11, 2010 (the “L/C Cash Collateral Agreement”), by and among the Parent, TMA and TMO, as assignors, Nordea Bank Norge ASA, Cayman Islands Branch, as assignee, and Nordea, as issuing lender. |
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ARTICLE IV
ABSENCE OF WAIVER
The parties hereto agree that the agreements set forth in this Second Amendment shall not be
deemed to:
(a) except as expressly set forth herein, be a consent to, or waiver of, any Default or
Event of Default or any “event of default” (however styled) under any Credit Document or any
other instrument governing indebtedness of any Credit Party;
(b) except as expressly set forth herein, modify or limit any other term or condition
of the Credit Agreement or any other Credit Document or any related documents;
(c) impose upon any Lender or any affiliate thereof, any obligation, express or
implied, to consent to any amendment or further modification of the Credit Agreement or
other Credit Document or any related documents; or
(d) except as otherwise expressly provided in Articles I and II,
prejudice any right or remedy that any Lender or any affiliate thereof may now have or may
in the future have under the Credit Agreement or under or in connection with the other
Credit Documents or any instrument or agreement referred to therein or any related documents
including, without limitation, any right or remedy resulting from any Default or Event of
Default or any “event of default” (however styled).
The provisions of this Article IV shall survive the Forbearance Period until the
termination of the Credit Documents and the payment in full of all obligations of the Credit
Parties under or in respect of the Credit Agreement and the other Credit Documents.
ARTICLE V
AMENDMENTS TO CREDIT AGREEMENT
Section 5.01. Section 1 of the Credit Agreement is hereby amended by inserting in the
appropriate alphabetical order the following new definitions:
“Additional Credit Facility” shall mean a credit facility in form and substance
satisfactory to the Lenders, which shall be secured on a pari passu basis by the Collateral,
provided that (i) no mandatory repayments of such Indebtedness shall be required
prior to the Maturity Date other than repayments in an amount equal to the Additional Credit
Facility Lenders’ pro rata share of any asset sale proceeds so long as
the Lenders are also repaid in an amount equal to their pro rata share of
any asset sale proceeds, (ii) the covenants and events of default set forth therein shall be
no more restrictive in any material respect than the covenants and events of default in this
Agreement and (iii) the Additional Credit Facility Lenders (or an agent on behalf of such
Additional Credit Facility Lenders) shall enter into a collateral agency and intercreditor
agreement with the Lenders and the holders of the Senior Notes (or an agent on behalf of
such Lenders
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and/or holders of the Senior Notes, as the case may be) in form and substance
satisfactory to the Administrative Agent and substantially similar to the Collateral Agency
and Intercreditor Agreement.
“Additional Credit Facility Lenders” shall mean the lenders from time to time
under the Additional Credit Facility.
“Additional Loans” shall mean the loans incurred by the Borrower and/or the
letters of credit issued on behalf of the Borrower pursuant to the Additional Credit
Facility.
“Additional Senior Notes” shall mean the “Additional Notes” issued pursuant to
and as defined in the Senior Notes Indenture (as in effect on the Second Amendment Effective
Date).
“Forbearance Period” means the period beginning at 12:01 AM EST on June 17,
2010 and ending on the earliest to occur of (i) one year following such date, (ii) the
effective date of a plan of reorganization for the Parent, Trico Marine Cayman and/or Trico
Holdco in the Parent Bankruptcy Case and (iii) the Forbearance Termination Date.
“Initial Senior Notes” shall mean the 11.875% Senior Secured Notes of the
Borrower, due November 1, 2014 issued pursuant to the Senior Notes Indenture prior to the
Second Amendment Effective Date.
“Liquidity” shall have the meaning provided in Section 10.13.
“LTM Consolidated Cash Flow” shall have the meaning provided in Section
10.14.
“Noteholder Forbearance” shall mean that certain First Supplemental Indenture,
dated as of June 17, 2010, to the Senior Notes Indenture, by and among the Borrower, the
guarantors named therein and Deutsche Bank National Trust Company (successor trustee to
Xxxxx Fargo Bank, N.A.), as trustee (as in effect on the Second Amendment Effective Date and
without giving effect to any amendment, modification, supplement or waiver thereto).
“Parent Bankruptcy Case” shall mean the commencement of a bankruptcy case by
Parent, Trico Cayman and/or Trico Holdco under Title 11 of the Bankruptcy Code or any other
state or foreign bankruptcy statute.
“Second Amendment” shall mean the Second Amendment and Forbearance to Credit
Agreement dated as of June 17, 2010.
“Second Amendment Effective Date” shall have the meaning provided in Section
7.05 of the Second Amendment.
“Senior Notes” shall mean the Initial Senior Notes and the Additional Senior
Notes.
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“Specified Events of Default” shall have the meaning provided in the third
recital to the Second Amendment.
Section 5.02. The definition of “Permitted Collateral Liens” appearing in Section 1 of the
Credit Agreement is hereby amended by inserting the text “Second Amendment” immediately preceding
the text “Effective Date” appearing in said definition.
Section 5.03. The definition of “Permitted Liens” appearing in Section 1 of the Credit
Agreement is hereby amended by inserting the text “Second Amendment” immediately preceding the text
“Effective Date” appearing in said definition.
Section 5.04. Section 2.07 of the Credit Agreement is hereby amended by inserting the
following new clause (g) immediately following clause (f) appearing therein:
“(g) During the Forbearance Period, in addition to the Letter of Credit Fee and the
interest rate in respect of the unpaid principal amount of Loans, the Letter of Credit Fee
shall be increased by 2.0% per annum and the Loans shall bear additional interest on unpaid
principal amounts at the rate of 2.0% per annum. All references in this Agreement to
“interest” and “Letter of Credit Fee” shall be deemed to include such additional interest
and increased fee to the extent then applicable.”.
Section 5.05. Section 4.03(f) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
“Each reduction to, or termination of, the Total Commitment pursuant to (x)
Sections 4.02, 4.03(c), 4.03(d) or 4.03(e) shall be applied
to reduce future Scheduled Commitment Reductions on a pro
rata basis (based upon the then
applicable amounts of such Scheduled Commitment Reductions) and (y) Section 4.03(h)
shall be applied first, to reduce the Scheduled Commitment Reduction on the
immediately succeeding Scheduled Commitment Reduction Date to zero, and second, to
reduce future Scheduled Commitment Reductions (i.e. the Scheduled Commitment Reductions
following the immediately succeeding Scheduled Reduction Date) on a
pro rata basis (based
upon the then applicable amounts of such Scheduled Commitment Reductions).”.
Section 5.06. Section 4.03 of the Credit Agreement is hereby further amended by
inserting the following new clause (h) immediately following clause (g) appearing therein:
”(h) In addition to, but without duplication of, any other mandatory commitment
reductions required pursuant to this Section 4.03, on any date on which
Additional Senior Notes are issued or Additional Loans are incurred, the Total
Commitment shall be permanently reduced to $15,000,000.”.
Section 5.07. Section 5.02 of the Credit Agreement is hereby amended by inserting the
following new clause (d) immediately following clause (c) appearing therein:
“(d) On any day on which the Borrower or any of the Guarantors incurs Indebtedness in
connection with an issuance of Additional Senior Notes or an incurrence of Additional Loans
pursuant to Section 10.04(xiv), the Borrower shall repay on such
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date the principal
of Loans in an amount equal to the amount required to reduce the aggregate outstanding Loans
and Letter of Credit Outstandings to $15,000,000.”.
Section 5.08. Section 10.03 of the Credit Agreement is hereby amended by deleting
clause (ii) of said Section and inserting the following clause (ii) in lieu thereof:
“(ii) During the Forbearance Period, Holdings may pay Dividends of up to $5,000,000 in
the aggregate; provided, however, that if an Event of Default has occurred
and is continuing at the time of such payment, then Holdings shall not be permitted to pay
any Dividends.”.
Section 5.09. Section 10.04(xiv) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“(xiv) Indebtedness of the Borrower and the Guarantors under the Senior Notes Indenture
and/or an Additional Credit Facility in an aggregate principal amount not to exceed at any
one time outstanding $465,000,000 less the aggregate principal amount of (i) the
Senior Notes redeemed, repurchased or otherwise retired and (ii) the Additional Loans
repaid; provided that (i) no Default or Event of Default (other than the Specified
Events of Default) shall exist at the time of, or after giving effect to, the issuance of
Additional Senior Notes or the incurrence of Additional Loans, (ii) the aggregate principal
amount of Indebtedness evidenced by the Additional Senior Notes or the Additional Loans at
any time outstanding pursuant to this clause (xiv) shall not exceed $65,000,000 less
any repayments of principal of such Indebtedness theretofore outstanding pursuant to this
clause (xiv), (iii) the net cash proceeds received by the Borrower or the Guarantors from
the issuance of the Additional Senior Notes or incurrence of Additional Loans shall be
applied to prepay Loans in accordance with Section 5.02(d), (iv) at the time of any
issuance of Additional Senior Notes or incurrence of Additional Loans, the Total Commitment
shall be reduced to $15,000,000 in accordance with the requirements of Sections
4.03(f), and (v) the Administrative Agent shall have received an officer’s certificate
executed by an Authorized Officer of the Borrower certifying that the issuance of the
Additional Senior Notes or the incurrence of Additional Loans does not violate the Senior
Notes Documentation.”.
Section 5.10. Section 10.11 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
“10.11 Voluntary Prepayments, Etc. of Senior Notes and Additional Loans; Amendments
of Senior Notes Documentation and Additional Credit Facility. (a) The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, voluntarily prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner (it being understood that payments of regularly
scheduled principal and interest, fees and legal expenses, as well as mandatory prepayments
shall be permitted) the Senior Notes unless a corresponding pro rata
reduction in the Total Commitment is made pursuant to Section 4.03 and, to the
extent that the Aggregate Exposure exceeds the Total Commitment after giving effect thereto,
repays on such date
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the principal of Loans and/or cash collateralizes the Letter of Credit
in an amount equal to such excess as provided in Section 5.02(b).
(b) The Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, voluntarily prepay the Additional Loans at any time prior to the Maturity Date
(it being understood that payments of regularly scheduled interest, fees and legal expenses,
as well as mandatory prepayments with asset sale proceeds shall be permitted).
(c) The Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, amend, modify or change any term or condition of the Additional Credit Facility
or any documentation related to the Senior Notes, including, but not limited to the Senior
Notes Documentation, in each case except in a manner that would not materially adversely
affect the Lenders.”.
Section 5.11. Section 10 of the Credit Agreement is hereby amended by inserting the
following new Sections 10.13 and 10.14 immediately following Section 10.12
appearing therein:
“10.13. Minimum Cash. During the Forbearance Period, Holdings, the Borrower
and the Subsidiaries Guarantors, on a consolidated basis, shall maintain as of the end of
each fiscal month beginning June 30, 2010 cash and cash equivalents (in each case, free of
Liens other than those in favor of the Collateral Agent) (“Liquidity”) of not less
than $20,000,000; provided, however, that in lieu of the foregoing, (i)
solely for the month of June 2010, unless prior to the end of such month the Borrower shall
have issued Additional Senior Notes or incurred Additional Loans permitted under Section
10.04(xiv), Liquidity may not be less than $10,000,000; and (ii) solely for the months of
February and March 2011, unless prior to the end of either such month the Borrower shall
have received $12,870,000 or more of the anticipated refunds relating to the termination of
the Existing Option Construction Contracts (as defined in the Senior Notes Indenture),
Liquidity may be not less than $15,000,000. The Borrower shall deliver to the
Administrative Agent an Officer’s Certificate, in the form attached hereto as Exhibit
M, and a detailed computation of its Liquidity no later than the 10th calendar day
following the end of each fiscal month beginning with the month ended June 30, 2010. If the
Liquidity threshold to be met at the end of June 2010 is $10,000,000 pursuant to clause (i)
above, then Holdings, the Borrower and the Subsidiaries Guarantors, on a consolidated basis,
shall also maintain at July 15, 2010, Liquidity of not less than $20,000,000 and the
Borrower shall deliver to the Administrative Agent an Officer’s Certificate, substantially
in the form attached hereto as Exhibit M, and a detailed computation of its
Liquidity no later than the 10th calendar day after July 15, 2010.
10.14. Minimum Monthly EBITDA. During the Forbearance Period, Holdings shall
have Consolidated Cash Flow for the preceding twelve-month period (“LTM Consolidated
Cash Flow”) measured as of the end of each fiscal month of Holdings of at least the
required amount set forth in the following table for each applicable month set forth above
such amount:
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| 6/30/2010 | 7/31/2010 | 8/31/2010 | 9/30/2010 | 10/31/2010 | 11/30/2010 | 12/31/2010 | 1/31/2011 | 2/28/2011 | 3/31/2011 | 4/30/2011 | 5/31/2011 | 6/30/2011 | ||||||||||||
| $57.1 | $54.8 | $51.0 | $45.9 | $53.4 | $58.5 | $61.0 | $65.3 | $72.8 | $69.9 | $75.6 | $76.9 | $80.1 |
Holdings shall deliver to the Administrative Agent an Officer’s Certificate, in
the form attached here to as Exhibit N, and a detailed computation of its LTM
Consolidated Cash Flow no later than the 30th calendar day following the end of each fiscal
month beginning with the month ended June 30, 2010.”.
Section 5.12. Section 11.04 of the Credit Agreement is hereby amended by inserting
the text “(x) during the Forbearance Period, at least $5,000,000 and (y) otherwise,” immediately
preceding the text “at least $10,000,000” appearing in said Section.
Section 5.13. Section 11.05 of the Credit Agreement is hereby amended by inserting the
text “(ix) the appointment of a chapter 11 trustee or examiner with expanded powers in any of the
Parent Bankruptcy Cases or the conversion of a Parent Bankruptcy Case into a case under chapter 7
of the Bankruptcy Code; or” immediately following clause (viii) appearing in said Section.
Section 5.14. Section 11 of the Credit Agreement is hereby amended by (i) inserting
the text “or” immediately following the semi-colon at the end of Section 11.12 appearing
therein and (ii) inserting the following new Section 11.13 immediately following
Section 11.12 appearing therein:
“11.13. Forbearance Termination Date. A Forbearance Termination Date (under
and as defined in the Second Amendment) shall occur;”.
Section 5.15. Section 11 of the Credit Agreement is hereby further amended by
inserting the following proviso immediately after the text “without the giving of any such notice”
appearing in the final paragraph appearing in said Section:
“; provided, further, that if any Guarantor is subject to an Event of
Default specified in Section 11.05, then notwithstanding anything to the contrary
contained above, all obligations guaranteed by the respective Guarantor, whether fixed or
contingent, shall be deemed, without the necessity of further action or notice to be due and
payable in full)”.
Section 5.16. Section 11 of the Credit Agreement is hereby further amended by
inserting the following new paragraph at the end of said Section:
“Notwithstanding the foregoing, until the expiration of the Forbearance Period, (i)
Sections 11.03, 11.04 (other than with respect to the Senior Notes
Indenture), 11.05, 11.06 and 11.09 shall not apply to the Parent,
Trico Cayman and/or Trico Holdco and (ii) Section 11.11 shall not apply. For the
avoidance of doubt, until the expiration of the Forbearance Period, the commencement and
continuation of a Parent Bankruptcy Case shall be deemed not to result in any Default, Event
of Default or a breach of any other covenant or term of this Agreement; provided,
however, that rights of the Administrative
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Agent and the Lenders to enforce the
obligations of Parent, Trico Cayman and/or Trico Holdco under their Guarantees are expressly
reserved.”
Section 5.17. In the event of the issuance of Additional Senior Notes or incurrence of
Additional Loans, the Administrative Agent is authorized to enter into such other amendments to the
Security Documents as are necessary to reflect the issuance of the Additional Senior Notes or
incurrence of Additional Loans and such other changes contemplated by this Second Amendment.
ARTICLE VI
FURTHER AGREEMENTS
Section 6.01. Each of the Lenders hereby waives, for the benefit of the Credit Parties, the
Specified Events of Default and acknowledges that no Event of Default with respect to any Credit
Party shall arise or be deemed to exist as a result of the Specified Events of Default,
provided that all parties hereto acknowledge and agree that upon the occurrence of the
Forbearance Termination Date (which occurrence shall constitute an Event of Default) and whether or
not relating to the Credit Parties, the Lenders and the Administrative Agent shall have the right
to exercise all of their rights and remedies under the Credit Documents and applicable law against
the Credit Parties.
Section 6.02. Each Non-Debtor Obligor will execute and deliver, or cause to be executed and
delivered, to the Administrative Agent such documents, agreements and instruments, and will take or
cause to be taken such further actions, which may be required by law or which the Administrative
Agent may, from time to time, reasonably request to ensure perfection and priority of the Liens
created or intended to be created by the Security Documents, all at the expense of the Credit
Parties.
Section 6.03. The Borrower will deliver to the Administrative Agent copies of all waivers
and/or forbearance agreements in respect of the Indebtedness of the Parent or the Borrower and
shall provide any other information reasonably requested by the Administrative Agent in connection
therewith.
Section 6.04. By delivery of an executed counterpart to this Second Amendment, each Lender
party hereto hereby authorizes and directs the Administrative Agent to enter into an amendment to
any Credit Document, as necessary, in such form and substance as the Administrative Agent shall
deem desirable or necessary in its reasonable discretion to incorporate the issuance of Additional
Notes or the incurrence of Additional Loans.
The Credit Parties hereby consent to all the provisions of, and actions contemplated by, this
Article VI.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. In order to induce the Lenders to enter into this Second Amendment, each of
Holdings and the Borrower hereby represent and warrant that other than the Specified Events of
Default, (i) no Default or Event of Default exists as of the Second Amendment Effective Date after
giving effect to this Second Amendment and (ii) all of the representations and warranties contained
in the Credit Agreement (other than the representation contained in Section 8.05(e) of the
Credit Agreement, and any representation or warranty which has been rendered untrue as a result of
the Specified Events of Default) are true and correct in all material respects on the Second
Amendment Effective Date both before and after giving effect to this Second Amendment, with the
same effect as though such representations and warranties had been made on and as of the Second
Amendment Effective Date (it being understood that any representation or warranty made as of a
specific date shall be true and correct in all material respects as of such specific date).
Section 7.02. This Second Amendment is limited as specified and shall not constitute a
modification, acceptance, consent to deviation from or waiver of any other provision of the Credit
Agreement or any other Credit Document.
Section 7.03. This Second Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts when executed and
delivered shall be an original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the U.S. Borrower and the
Administrative Agent. Delivery of an executed signature page to this Second Amendment by facsimile
transmission, as a .pdf attachment or by other electronic means of transmission shall be as
effective as delivery of a manually signed counterpart of this Second Amendment.
Section 7.04. THIS SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 7.05. This Second Amendment shall become effective on the date (the “Second
Amendment Effective Date”) when each of the following conditions shall have been satisfied:
(i) the Noteholder Forbearance, a copy of which is attached hereto in form reasonably
satisfactory to Administrative Agent, shall have been fully executed and shall be in full
force and effect;
(ii) the Borrower shall have paid all fees, costs and expenses (including reasonable
attorneys’ fees, costs and expenses) in full accrued to date and incurred in connection with
the transactions contemplated herein;
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(iii) each Credit Party and the Required Lenders shall have signed a counterpart hereof
(whether the same or different counterparts) and delivered the same (including by way of
facsimile or other electronic transmission) to White & Case LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000 Attention: May Xxx-Xxxxxxx (facsimile number: 000-000-0000 /
email: xxxx@xxxxxxxxx.xxx); and
(iv) the Borrower shall have paid the Administrative Agent, for the account of each
Lender, a non-refundable consent fee (the “Consent Fee”) in an amount equal to 25
basis points (0.25%) on the aggregate principal amount of all Loans and Letter of Credit
Outstandings of such Lender outstanding on the Second Amendment Effective Date (immediately
after the occurrence thereof and after giving effect to the application of the net cash
proceeds of the Additional Senior Notes or Additional Loans to prepay Loans on or prior to
such date). The Consent Fee shall not be subject to counterclaim or set-off, or be
otherwise affected by, any claim or dispute relating to any other matter.
Unless the Administrative Agent has received actual notice from any Lender that the conditions
contained above have not been met, upon the satisfaction of the condition described in clause (iii)
of the immediately preceding sentence and upon the Administrative Agent’s good faith determination
that the other conditions described above have been met, the Second Amendment Effective Date shall
be deemed to have occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the Second Amendment Effective Date
shall not release any Credit Party from any liability for failure to satisfy one or more of the
applicable conditions specified above).
Section 7.06. In addition to the Consent Fee described above, no later than the 45th calendar
day following the Second Amendment Effective Date, the Borrower shall pay the Administrative Agent
for the account of each Lender a non-refundable consent fee (the “Additional Consent Fee”)
in an amount equal to 25 basis points (0.25%) on the aggregate principal amount of all Loans and
Letter of Credit Outstandings of such Lender outstanding on the Second Amendment Effective Date
(immediately after the occurrence thereof and after giving effect to the application of the net
cash proceeds of the Additional Senior Notes or Additional Loans to prepay Loans on or prior to
such date). The Additional Consent Fee shall not be subject to counterclaim or set-off, or be
otherwise affected by, any claim or dispute relating to any other matter.
Section 7.07. By executing and delivering a copy hereof, each Credit Party hereby agrees that
all Loans shall each be guaranteed pursuant to the applicable Guaranty in accordance with the terms
and provisions thereof and shall be fully secured pursuant to the Security Documents in accordance
with the terms and provisions thereof.
Section 7.08. Each of the parties hereto agree and acknowledge that notwithstanding anything
to the contrary contained herein, none of the Administrative Agent or the Borrower or any of its
Subsidiaries shall have any duty to disseminate any information or
materials, or to solicit the participation, of any Lender (or any affiliate (including funds under
common management) thereof).
-12-
The Borrower and its Subsidiaries agree to indemnify and hold harmless the Administrative
Agent and its affiliates and each director, officer, employee, representative and agent thereof
(each, an “indemnified person”) from and against any and all actions, suits, proceedings
(including any investigations or inquiries), claims, losses, damages, liabilities or expenses of
any kind or nature whatsoever which may be incurred by or asserted against or involve the
Administrative Agent or any other such indemnified person as a result of or arising out of or in
any way related to or resulting from the matters described in the foregoing paragraph and, upon
demand, to pay and reimburse the Administrative Agent and each other indemnified person for any
reasonable legal or other out-of-pocket expenses paid or incurred in connection with investigating,
defending or preparing to defend any such action, suit, proceeding (including any inquiry or
investigation) or claim (whether or not the Administrative Agent or any other such indemnified
person is a party to any action or proceeding out of which any such expenses arise).
Section 7.09. No Lender shall assign or transfer any of its Revolving Loan Commitment and/or
its outstanding Loans to any Person unless such Person shall have signed a counterpart hereof
contemporaneously with such assignment or transfer.
Section 7.10. From and after the Second Amendment Effective Date, all references in the Credit
Agreement and each of the other Credit Documents to the Credit Agreement shall be deemed to be
references to the Credit Agreement as modified hereby.
ARTICLE VIII
GENERAL RELEASE; INDEMNITY
Section 8.01. In consideration of, among other things, the execution and delivery of this
Agreement by the Administrative Agent and the Lenders, and any financial accommodations which the
Administrative Agent or any Lender elects to extend to the Borrower or any other Credit Party after
the date hereof, each of the Borrower and the other Credit Parties, on behalf of itself and its
successors and assigns (collectively, “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 and the Lenders 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 Second Amendment Effective Date. The receipt by Borrower or any other Credit Party of
any Loans or other financial accommodations made by the Administrative Agent or any Lender after
the date hereof shall constitute a ratification, adoption, and confirmation by 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 of receipt of any such Loans or other
financial accommodations. In entering into this Agreement, Borrower and the other Credit
-13-
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 this Agreement and the other Credit
Documents and payment in full of the Obligations.
* * *
-14-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to
execute and deliver this Second Amendment as of the date first above written.
| TRICO SHIPPING AS |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| TRICO MARINE CAYMAN, L.P. By: Trico Holdco LLC, General Partner |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President | |||
| TRICO HOLDCO LLC |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President | |||
| TRICO SUPPLY AS |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| DEEPOCEAN SHIPPING III AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| DEEPOCEAN SHIPPING II AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| DEEPOCEAN SHIPPING AS |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| DEEPOCEAN AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| TRICO SUPPLY (UK) LIMITED |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| ALBYN MARINE LIMITED |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| CTC MARINE PROJECTS LIMITED |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| DEEPOCEAN BRASIL SERVICOS LTDA. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | General Manager | |||
| DEEPOCEAN MARITIME AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| DEEPOCEAN MANAGEMENT AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| DEEPOCEAN DE MEXICO S. DE X.X. DE C.V. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | General Manager | |||
| CTC MARINE NORWAY AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| CTC MARINE PROJECTS (GUERNSEY) LIMITED |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Director | |||
| DEEPOCEAN SUBSEA SERVICES LIMITED |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Director | |||
| DEEPOCEAN BV |
||||
| By: | /s/ Mads Xxxxxx Xxxxxx | |||
| Name: | Mads Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
| DEEPOCEAN UK LTD. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| SERVICIOS PROFESIONALES DE APOYO ESPECIALIZADO, S. DE
X.X. DE C.V. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | General Manager | |||
| SERVICIOS DE SOPORTE PROFESIONAL ADMINISTRATIVO, S.
DE X.X. DE C.V. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | General Manager | |||
| TRICO SUBSEA AS |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chairman | |||
| NORDEA BANK FINLAND PLC, NEW YORK BRANCH,
Individually and as Administrative Agent |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | First Vice President | |||
| UNICREDIT BANK AG (f/k/a BAYERISCHE HYPO- UND
VEREINSBANK), as Lender |
||||
| By: | /s/ Xxxxxxx Somitsch | |||
| Name: | Xxxxxxx Somitsch | |||
| Title: | VP | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Associate | |||
EXHIBIT M
to the Credit Agreement
to the Credit Agreement
TRICO SHIPPING AS
Officer’s Certificate
Officer’s Certificate
This Officer’s Certificate is given by the undersigned Authorized Officer pursuant to Section
10.13 of the Credit Agreement, dated as of October 30, 2009 and amended as of March 15, 2010 (as
further amended, restated, modified or supplemented, the “Credit Agreement”), Trico Marine
Cayman, L.P., a limited partnership organized under the laws of the Cayman Islands, Trico Holdco
LLC, a Delaware limited liability company and the general partner of Trico Cayman, Trico Supply AS,
a limited company organized under the laws of Norway (“Holdings”), the Subsidiary
Guarantors listed on Schedule IX to the Credit Agreement (the “Subsidiary
Guarantors”), Trico Shipping AS, a limited company organized under the laws of Norway and a
wholly-owned Subsidiary of Holdings (the “Borrower”), the lenders from time to time party
thereto and Nordea Bank Finland plc, New York Branch, as Administrative Agent.
Capitalized terms used herein but not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
The undersigned hereby certifies as follows:
1. I hold the office in respect of the Borrower indicated under my signature below.
2. I have read Section 10.13 of the Credit Agreement pertaining to this Officer’s Certificate,
together with all definitions set forth in the Credit Agreement relevant to such section.
3. A review of the activities of Holdings, the Borrower and the Subsidiary Guarantors during
the preceding fiscal month of the Borrower (the “Reporting Period”) has been made under my
supervision with a view to determining whether or not the Borrower has kept, observed, performed
and fulfilled the covenant contained in Section 10.13 of the Credit Agreement. In addition, I have
made such other examination or investigation as is necessary to enable me to express an informed
opinion on the matters referred to in Section 10.13 of the Credit Agreement.
4. To the best of my knowledge, Holdings, the Borrower and the Subsidiary Guarantors have
kept, observed, performed and fulfilled the covenant contained in Section 10.13 of the Credit
Agreement.
5. Attached as Exhibit A to this Officer’s Certificate is a computation of the
Liquidity of Holdings, the Borrower and the Subsidiary Guarantors, on a consolidated basis, for the
Reporting Period.
IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of this day
of
,
201 [within 10 calendar days of month-end, beginning with June 2010].
| By | ||||
| Name: | [Any authorized officer] | |||
| Title: | ||||
EXHIBIT N
to the Credit Agreement
to the Credit Agreement
TRICO SHIPPING AS
Officer’s Certificate
Officer’s Certificate
This Officer’s Certificate is given by the undersigned pursuant to Section 10.14 of the Credit
Agreement, dated as of October 30, 2009 and amended as of March 15, 2010 (as further amended,
restated, modified or supplemented, the “Credit Agreement”), Trico Marine Cayman, L.P., a
limited partnership organized under the laws of the Cayman Islands, Trico Holdco LLC, a Delaware
limited liability company and the general partner of Trico Cayman, Trico Supply AS, a limited
company organized under the laws of Norway (“Holdings”), the Subsidiary Guarantors listed
on Schedule IX to the Credit Agreement (the “Subsidiary Guarantors”), Trico
Shipping AS, a limited company organized under the laws of Norway and a wholly-owned Subsidiary of
Holdings (the “Borrower”), the lenders from time to time party thereto and Nordea Bank
Finland plc, New York Branch, as Administrative Agent.
Capitalized terms used herein but not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
The undersigned hereby certifies as follows:
1. I hold the office in respect of Holdings indicated under my signature below.
2. I have read Section 10.14 of the Credit Agreement pertaining to this Officer’s Certificate,
together with all definitions set forth in the Credit Agreement relevant to such section.
3. A review of the activities of Holdings during the preceding fiscal month of the Holdings
(the “Reporting Period”) has been made under my supervision with a view to determining
whether or not Holdings has kept, observed, performed and fulfilled the covenant contained in
Section 10.14 of the Credit Agreement. In addition, I have made such other examination or
investigation as is necessary to enable me to express an informed opinion on the matters referred
to in Section 10.14 of the Credit Agreement.
4. To the best of my knowledge, Holdings has kept, observed, performed and fulfilled the
covenant contained in Section 10.14 of the Credit Agreement.
5. Attached as Exhibit A to this Officer’s Certificate is a computation of the LTM
Consolidated Cash Flow of the Borrower for the Reporting Period.
IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of this day
of , 201 [within 30 calendar days of month-end, beginning with June 2010].
| By | ||||
| Name: | [Any authorized officer] | |||
| Title: | ||||
