FIRST AMENDMENT TO RESTATED FIRST LIEN CREDIT AGREEMENT
Exhibit 10.13
FIRST AMENDMENT TO RESTATED FIRST LIEN CREDIT
This FIRST AMENDMENT TO RESTATED FIRST LIEN CREDIT AGREEMENT (this “First Amendment”), dated as of June 6, 2022, is made by and among Xxxxxxxx Offshore Services, Inc., a Delaware corporation (“HOSI” or the “Parent Borrower”); Xxxxxxxx Offshore Services, LLC, a Delaware limited liability company (“HOS” or the “Co-Borrower”); and the Parent Borrower together with the Co-Borrower, collectively, the “Borrowers” and each, a “Borrower”; each of the Lenders party hereto; Wilmington Trust, National Association as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”); and Wilmington Trust, National Association, as collateral agent for the Lenders (in such capacity, together with its successors in such capacity, the “Collateral Agent”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Existing Restated First Lien Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Parent Borrower, the Co-Borrower, the lenders party thereto from time to time, the Administrative Agent and the Collateral Agent are party to that certain First Lien Term Loan Credit Agreement, dated as of September 4, 2020 as amended and restated on December 22, 2021, and as amended, supplemented, waived or otherwise modified from time to time prior to the First Amendment Effective Date referred to below, the “Existing Restated First Lien Credit Agreement” and, as amended by this First Amendment, the “Amended Restated First Lien Credit Agreement”);
WHEREAS, the Parent Borrower, the Co-Borrower, the Administrative Agent and the Lenders party hereto (which for the avoidance of doubt constitute Required Lenders) desire to make certain changes to the Existing Restated First Lien Credit Agreement on the First Amendment Effective Date, in each case on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Credit Agreement.
(a) Clause (i) of the definition of “Approved Vessel Reflagging Transaction” in Section 1.02 of the Existing Restated First Lien Credit Agreement is hereby amended and restated to add the words shown in underline below:
(i) “no loan party shall be permitted to change the flag or documentation or registration of any Effective Date US.S. Flagged Vessel that is an MPSV, unless listed on Schedule 8.11(b);”
(b) Clause (ii) of the definition of “Approved Vessel Reflagging Transaction” in Section 1.02 of the Existing Restated First Lien Credit Agreement is hereby amended and restated to remove the words stricken and add the words shown in underline below:
(ii) “other than in the case of Effective Date Low Spec Specified Vessels, no more than three
(3) five (5) Effective Date U.S. flagged vessels may have their flag or documentation or registration changed if the result thereof is that such Effective Date U.S. Flagged Vessel is no longer flagged under the
laws of the United States.
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(c) “Vessel Reflagging Transaction Information” is hereby amended and restated to add either the HOS Strongline or the HOS Centerline (but not both) in accordance with the redline attached hereto as Exhibit A.
SECTION 2. Representations of the Borrowers. Each Borrower hereby represents and warrants to the other parties hereto as of the First Amendment Effective Date that:
(a) the execution, delivery and performance by it of this First Amendment (x) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person (including members, partners or shareholders of the Borrowers, the Guarantors or any other Person), nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of this First Amendment or the consummation of the transactions contemplated hereby, except such as have been obtained or made and are in full force and effect other than the recording and filing of the Security Instruments as required by this First Amendment and (y) does not violate (i) any applicable law or regulation, (ii) the Organizational Documents of the Borrowers, the Guarantors or any Restricted Subsidiary of the Parent Borrower or (iii) any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument evidencing Material Debt binding upon the Borrowers or any Restricted Subsidiary of the Parent Borrower or their Properties, or give rise to a right thereunder to require any material payment to be made by the Borrowers or such Restricted Subsidiary of the Parent Borrower and (d) will not result in the creation or imposition of any Lien on any Property of the Borrowers or any Restricted Subsidiary of the Parent Borrower (other than the Liens created by the Loan Documents);
(b) it has all requisite corporate or limited liability company power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to enter into this First Amendment and the execution, delivery and performance by it of this First Amendment, has been duly authorized by all necessary organizational action by it;
(c) each Borrower has duly executed and delivered this First Amendment, and this First Amendment, the Existing Restated First Lien Credit Agreement and each other Loan Document to which it is a party constitutes the legally valid and binding obligations of it, enforceable against it in accordance with its terms, subject to applicable Bankruptcy Law, laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3. Conditions of Effectiveness. The effectiveness of this First Amendment on the First Amendment Effective Date is subject to the satisfaction (or waiver in accordance with Section 12.02(a) of the Existing Restated First Lien Credit Agreement) of the following conditions:
(a) the Administrative Agent (or its counsel) shall have received (i) from Lenders constituting Required Lenders and (ii) from the Borrowers, either (x) a counterpart of this First Amendment signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this First Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this First Amendment (the date of such satisfaction or waiver, the “First Amendment Effective Date”).
SECTION 4. Reference to and Effect on the Loan Documents.
(a) On and after the First Amendment Effective Date, each reference in the Existing Restated First Lien Credit Agreement to “hereunder”, “hereof”, “Agreement”, “this First Amendment” or words of like import and each reference in the other Loan Documents to “Credit Agreement”, “First Lien Credit Agreement”, “thereunder”, “thereof” or words of like import shall, unless the context otherwise requires, mean and be a reference to the Existing Restated First Lien Credit Agreement as amended on the First Amendment Effective Date. From and after the First Amendment Effective Date, this First Amendment shall be a Loan Document under the Existing Restated First Lien Credit Agreement.
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(b) The Security Instruments and each other Loan Document, as specifically amended by this First Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed, and the respective guarantees, pledges, grants of security interests and other agreements, as applicable, under each of the Security Instruments, notwithstanding the consummation of the transactions contemplated hereby, shall continue to be in full force and effect and shall accrue to the benefit of the Secured Parties under the Existing Restated First Lien Credit Agreement. Without limiting the generality of the foregoing, the Security Instruments and all of the Collateral described therein do and shall continue to secure the payment of all Indebtedness of the Loan Parties under the Loan Documents, in each case, as amended by this First Amendment.
(c) The execution, delivery and effectiveness of this First Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Execution in Counterparts; Electronic Signature. This First 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. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this First Amendment shall be effective as delivery of an original executed counterpart of this First Amendment, and the words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to this First Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Lenders party hereto or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 6. Amendments; Headings; Severability. This First Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrowers or Administrative Agent and the Lenders party hereto. The Section headings used herein are for convenience of reference only, are not part of this First Amendment and are not to affect the construction of, or to be taken into consideration in interpreting this First Amendment. Any provision of this First Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
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SECTION 7. Governing Law; Etc.
(a) THIS FIRST AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST AMENDMENT, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) EACH PARTY HERETO XXXXXX AGREES AS SET FORTH IN SECTION 12.09 OF THE EXISTING RESTATED FIRST LIEN CREDIT AGREEMENT AS IF SUCH SECTIONS WERE SET FORTH IN FULL HEREIN MUTATIS MUTANDIS.
SECTION 8. No Novation. This First Amendment shall not discharge or release the Lien or priority of any Security Instrument or any other security therefor. Nothing herein contained shall be construed as a substitution or novation of the instruments securing the Existing First Lien Credit Agreement or the Existing Restated First Lien Credit Agreement, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith and except to the extent repaid as provided herein. Nothing implied in this First Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties under any Loan Document from any of its obligations and liabilities as a guarantor or pledgor under any of the Loan Documents.
SECTION 9. Notices. All notices hereunder shall be given in accordance with the provisions of Section 12.01 of the Existing Restated First Lien Credit Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| PARENT BORROWER: | ||
| XXXXXXXX OFFSHORE SERVICES, INC. | ||
| By: | /s/ Xxxxx X. Xxxx, Xx. | |
| Name: Xxxxx X. Xxxx, Xx. | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| CO-BORROWER: | ||
| XXXXXXXX OFFSHORE SERVICES, LLC | ||
| By: | /s/ Xxxxx X. Xxxx, Xx. | |
| Name: Xxxxx X. Xxxx, Xx. | ||
| Title: Executive Vice President and Chief Financial Officer | ||
[HOS – First Amendment – Restated 1L CA (2022)]
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent and Debt Representative | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Vice President | ||
[HOS – First Amendment – Restated 1L CA (2022)]
| REQUIRED LENDERS: | ||
| HIGHBRIDGE TACTICAL CREDIT | ||
| MASTER FUND, L.P., as a 2021 Replacement Term Lender | ||
| By: Highbridge Capital Management LLC, as Trading Manager | ||
| By: | /s/ Xxxxxxxx Xxxxx | |
| Name: Xxxxxxxx Xxxxx | ||
| Title: Managing Director, Co-Chief Investment Officer | ||
[HOS – First Amendment – Restated 1L CA (2022)]
| ASOF HOLDINGS II, L.P., as a 2021 Replacement Term Lender | ||
| By: ASOF Investment Management LLC, its manager | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Authorized Signatory | ||
| ASSF IV AIV B, L.P., as a 2021 Replacement Term Lender | ||
| By: ASSF Management IV, L.P., its general partner | ||
| By: ASSF Management IV GP LLC, its general Partner | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Authorized Signatory | ||
[HOS – First Amendment – Restated 1L CA (2022)]
| WHITEBOX KFA ADVAVANTAGE LLC | ||
| as a 2021 Replacement Term Lender | ||
| By: Whitebox Advisors LLC, its investment manager | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: General Counsel & CCO | ||
| WHITEBOX GT FUND, LP, as a 2021 Replacement Term Lender | ||
| By: Whitebox Advisors LLC, its investment manager | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: General Counsel & CCO | ||
| WHITEBOX MULTI-STRATEGY PARTNERS, LP, as a 2021 Replacement Term Lender | ||
| By: Whitebox Advisors LLC, its investment manager | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: General Counsel & CCO | ||
| WHITEBOX RELATIVE VALUE PARTNERS, LP, as a 2021 Replacement Xxxx Xxxxxx | ||
| By: Whitebox Advisors LLC, its investment manager | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: General Counsel & CCO | ||
[HOS – First Amendment – Restated 1L CA (2022)]
| PANDORA SELECT PARTNERS, LP, as a 2021 Replacement Term Lender | ||
| By: Whitebox Advisors LLC, its investment manager | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: General Counsel & CCO | ||
[HOS – First Amendment – Restated 1L CA (2022)]
EXHIBIT A TO
FIRST AMENDMENT TO RESTATED FIRST LIEN CREDIT AGREEMENT
SCHEDULE 8.11(b)
VESSEL REFLAGGING TRANSACTION INFORMATION
| U.S. FLAGGED VESSEL NAME |
CLASS | CATEGORY | VALUE | EFFECTIVE DATE LOW SPEC SPECIFIED VESSELS |
||||||||||
| HOS Super H |
200 Class | Low-Spec OSV | $ | 570,000 | Yes | |||||||||
| HOS Explorer |
200 Class | Low-Spec OSV | $ | 520,000 | Yes | |||||||||
| HOS Voyager |
200 Class | Low-Spec OSV | $ | 460,000 | Yes | |||||||||
| HOS Pioneer |
200 Class | Low-Spec OSV | $ | 670,000 | Yes | |||||||||
| HOS Beaufort |
200 Class | Low-Spec OSV | $ | 830,000 | Yes | |||||||||
| HOS Xxxxxxx |
200 Class | Low-Spec OSV | $ | 1,010,000 | Yes | |||||||||
| HOS Nome |
200 Class | Low-Spec OSV | $ | 1,030,000 | Yes | |||||||||
| HOS Cornerstone |
240 Class | Low-Spec OSV | $ | 980,000 | Yes | |||||||||
| HOS Innovator |
240 Class | Low-Spec OSV | $ | 1,230,000 | Yes | |||||||||
| HOS Dominator |
240 Class | Low-Spec OSV | $ | 1,440,000 | Yes | |||||||||
| HOS Beignet |
240 Class | Hi-Spec OSV | $ | 1,280,000 | Yes | |||||||||
| HOS Boudin |
240 Class | Hi-Spec OSV | $ | 1,140,000 | Yes | |||||||||
| HOS Bourre |
240 Class | Hi-Spec OSV | $ | 1,000,000 | Yes | |||||||||
| HOS Coquille |
240 Class | Hi-Spec OSV | $ | 1,090,000 | Yes | |||||||||
| HOS Cayenne |
240 Class | Hi-Spec OSV | $ | 920,000 | Yes | |||||||||
| HOS Chicory |
240 Class | Hi-Spec OSV | $ | 1,100,000 | Yes | |||||||||
| HOS Bluewater |
240ED Class | Hi-Spec OSV | $ | 2,070,000 | No | |||||||||
| HOS Gemstone |
240ED Class | Hi-Spec OSV | $ | 2,150,000 | No | |||||||||
| HOS Greystone |
240ED Class | Hi-Spec OSV | $ | 2,240,000 | No | |||||||||
| HOS Silverstar |
240ED Class | Hi-Spec OSV | $ | 2,370,000 | No | |||||||||
| HOS Polestar |
240ED Class | Hi-Spec OSV | $ | 4,640,000 | No | |||||||||
| HOS Shooting Star |
240ED Class | Hi-Spec OSV | $ | 4,630,000 | No | |||||||||
| HOS North Star |
240ED Class | Hi-Spec OSV | $ | 4,880,000 | No | |||||||||
| HOS Lode Star |
240ED Class | Hi-Spec OSV | $ | 4,960,000 | No | |||||||||
| HOS Resolution |
250EDF Class | Hi-Spec OSV | $ | 4,920,000 | No | |||||||||
| HOS Mystique |
250EDF Class | Hi-Spec OSV | $ | 16,460,000 | No | |||||||||
| HOS Pinnacle |
250EDF Class | Hi-Spec OSV | $ | 5,840,000 | No | |||||||||
| HOS Windancer |
250EDF Class | Hi-Spec OSV | $ | 6,000,000 | No | |||||||||
| HOS Wildwing |
250EDF Class | Hi-Spec OSV | $ | 6,240,000 | No | |||||||||
| HOS Brimstone |
265 Class | Hi-Spec OSV | $ | 2,120,000 | No | |||||||||
| HOS Stormridge |
265 Class | Hi-Spec OSV | $ | 2,180,000 | No | |||||||||
| HOS Sandstorm, |
265 Class | Hi-Spec OSV | $ | 2,230,000 | No | |||||||||
| HOS Red Xxxx |
300 Class | Ultra Hi-Spec OSV | $ | 16,390,000 | No | |||||||||
| HOS Red Rock |
300 Class | Ultra Hi-Spec OSV | $ | 18,470,000 | No | |||||||||
| HOS Black Foot |
310 Class | Ultra Hi-Spec OSV | $ | 22,690,000 | No | |||||||||
| HOS Black Rock |
310 Class | Ultra Hi-Spec OSV | $ | 23,030,000 | No | |||||||||
| HOS Black Watch |
310 Class | Ultra Hi-Spec OSV | $ | 23,520,000 | No | |||||||||
| HOS Briarwood |
310 Class | Ultra Hi-Spec OSV | $ | 23,020,000 | No | |||||||||
| HOS Commander |
320 Class | Ultra Hi-Spec OSV | $ | 20,930,000 | No | |||||||||
| HOS Carolina |
320 Class | Ultra Hi-Spec OSV | $ | 21,750,000 | No | |||||||||
| HOS Claymore |
320 Class | Ultra Hi-Spec OSV | $ | 21,730,000 | No | |||||||||
| HOS Captain |
320 Class | Ultra Hi-Spec OSV | $ | 22,890,000 | No | |||||||||
| HOS Clearview |
320 Class | Ultra Hi-Spec OSV | $ | 23,380,000 | No | |||||||||
| HOS Xxxxxxxx |
320 Class | Ultra Hi-Spec OSV | $ | 23,800,000 | No | |||||||||
| HOS Caledonia |
320 Class | Ultra Hi-Spec OSV | $ | 24,370,000 | No | |||||||||
| HOS Cedar Ridge |
320 Class | Ultra Hi-Spec OSV | $ | 25,860,000 | No | |||||||||
| HOS Carousel |
320 Class | Ultra Hi-Spec OSV | $ | 25,170,000 | No | |||||||||
| Either the HOS Strongline or HOS Centerline (but not both) |
370 Class | MPSV | $ | 21,520,000 | No |
