FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (hereinafter called this "Amendment") is entered into effective
as of September 30, 1999, 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.
(the "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 (the "Issuing Bank"), and (e) XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, as administrative agent for itself, the Issuing Bank
and such financial institutions (the "Administrative Agent"), CHRISTIANIA
BANK OG KREDITKASSE ASA, New York Branch, as documentation agent for itself and
such financial institutions (the "Documentation Agent") (collectively the
"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 "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 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) The definition of "Pricing Grid" hereby is amended by deleting
from the last row (labeled "Level VII") of the third column (labeled
"Eurocurrency Rate Loan (bps)") the number "275.0" and inserting in lieu
thereof the number "325.0."
(b) SECTION 10.1 of the Agreement hereby is amended by deleting
the table therefrom and inserting the following table in lieu thereof:
PERIOD MINIMUM RATIO
9/30/99 through 12/30/99 0.60:1.00
12/31/99 through 3/30/00 1.00:1.00
3/31/00 through 12/30/00 1.20:1.00
12/31/00 and thereafter 1.35:1.00
(c) SECTION 10.2 of the Agreement hereby is amended by deleting
from the first row (labeled "9/30/99 through 12/30/99") of the second column
(labeled "Maximum Ratio") the ratio "8.75:1.00" and inserting in lieu thereof
the ratio "12.00:1.00."
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 receipt by the Administrative Agent of certificates of the
Secretary or Assistant Secretary of each of the Borrowers and the Parent
certifying those certain resolutions of each respective Board of Directors
delivered to the Banks as of July 19, 1999 in connection with the Credit
Agreement have not been amended, rescinded or revoked and are in full force and
effect as of the date hereof.
(c) The amendments to the Agreement set forth herein are further
conditioned upon the Borrowers having paid to each of the Banks that have
approved the terms of this Amendment an amendment fee equal to the product of
twenty-five basis points multiplied by such Bank=s Commitment.
(d) 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.
(e) The amendments to the Agreement set forth herein are further
conditioned upon the Borrowers having delivered to the Administrative Agent an
original executed copy of that certain Consent to Assignment of Charter dated
as of July 19, 1999 by and among Trico Marine Assets, Inc. and Trico Marine
Operators, Inc.
(f) The amendments to the Agreement set forth herein are further
conditioned upon the Borrowers having delivered to the Administrative Agent a
favorable opinion addressed to the Banks and the Administrative Agent, dated as
of even date hereof, in form and substance satisfactory to the Banks and the
Administrative Agent, from: Jones, Walker, Waechter, Poitevent, Carrere &
Xxxxxxx, L.L.P., counsel to the Borrowers and the Parent.
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.
(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 quarterly unaudited consolidated balance sheet of the
Parent and the Borrowers as of June 30, 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 June 30, 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's 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 incurre d 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 in any 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. 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 17. 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,
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:
