AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit
10.1
AMENDMENT NO. 1 (this “Amendment”), dated as of June 25, 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.
RECITALS
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 1 of the Credit Agreement is hereby amended to amend and restate the definition
of “Parent Company Liens” in its entirety to read as follows:
“’Parent Company Liens’ shall mean, collectively, the Liens on the
Capital Stock of Trico Holdco LLC, the Trico Marine Cayman Intercompany
Loan, the TMS Intercompany Indebtedness and the assets of Trico Marine
Cayman, L.P. and Trico Holdco LLC, in each case, to the extent pledged to
Wilmington Trust FSB, as collateral agent for the benefit of (i) the
Collateral Agent, (ii) the Working Capital Facility Agent and the Working
Capital Facility Lenders under the Working Capital Facility and (iii) the
Trustee and the Noteholders (in each case of (i), (ii) and (iii), as such
capitalized terms are defined in the Wilmington Pledge and Security
Agreement in effect on the date hereof) pursuant to the Wilmington Pledge
and Security Agreement or the other Security Documents (as defined in the
Wilmington Pledge and Security Agreement in effect on the date hereof).”
(b) Section 1 of the Credit Agreement is hereby amended to add a defined term “Wilmington
Pledge and Security Agreement” in the proper alphabetical order therefor, which definition shall
read as follows:
“’Wilmington Pledge and Security Agreement’ means that certain
Pledge and Security Agreement dated as of October 30, 2009, made by Borrower
and certain of its direct and indirect subsidiaries in favor of Wilmington
Trust FSB, as collateral agent, as such agreement may be amended from time
to time with the consent of Administrative Agent.”
(c) Section 10.01 of the Credit Agreement is hereby amended by amending the definition of
“Permitted Liens” contained therein to delete the “and” at the end of subclause (xx) therein, to
delete the “,” at the end of subclause (xxi) therein and to replace it with the following language
“; and” and to add a new subclause (xxii) which shall read as follows:
“(xxii) Liens on the Deposit (as defined in the Trico Shipping Commitment
Letter (as defined below)) in favor of Special Value Continuation Partners, LP,
Xxxxxxxxxx Opportunities Partners V, LP and Xxxxxxxxxx DIP Opportunity Fund, LLC
(collectively, the “Commitment Parties”) to secure obligations to pay the
Xxxxxxxxxx Expenses (as defined in the Trico Shipping Commitment Letter) and the
other sums payable by Trico Shipping under the Trico Shipping Commitment Letter. As
used herein, “Trico Shipping Commitment Letter” shall mean that certain Commitment
Letter among Trico Shipping AS and the Commitment Parties dated as of June 21, 2010,
as amended from time to time.”
(d) Section 11.05 of the Credit Agreement is hereby amended by adding the language “Trico
Marine International, Inc., Trico Holdco, LLC” immediately after the language “Other than the
commencement in the Bankruptcy Court for the District of Delaware by any of the Borrower,”
contained therein.
(e) Section 11.14(a) of the Credit Agreement is hereby amended to amend and restate such
Section in its entirety to read as follows:
“(a) The failure to occur by June 30, 2010 of both (x) the commencement in the
Bankruptcy Court for the District of Delaware by each of the Borrower, Trico
Operators, Trico Assets, Trico Marine International, Inc. and Trico Cayman of a
voluntary case concerning themselves under the Bankruptcy Code and (y) the delivery
to the Administrative Agent and the Lenders of a fully executed forbearance
agreement (such forbearance agreement, the “Second-Lien Notes Forbearance
Agreement”), in form and substance reasonably acceptable to the Lenders, from
Second-Lien Note Holders which hold not less than 51% of the outstanding principal
amount of the Second-Lien Notes;”
(f) Section 13 of the Credit Agreement is hereby amended to add a new Section 13.10 which
Section 13.10 shall read as follows:
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“13.10 Trico Marine International, Inc. Notwithstanding anything to the
contrary in this Agreement, the Guaranty given by Trico Marine International, Inc.
(“TMI”) hereunder shall not be effective until the earlier to occur of (i)
the commencement by the Borrower or any of its Subsidiaries of any voluntary
bankrtuptcy, insolvency or similar proceeding or (ii) the commencement of any
involuntary bankruptcy, insolvency or similar proceeding against the Borrower or any
of its Subsidiaries (each such event, a “Guaranty Effectiveness Event”),
whereupon immediately upon the occurrence of such Guaranty Effectiveness Event, TMI
hereby agrees with the Guaranteed Creditors that it unconditionally and irrevocably
guarantees to the Guaranteed Creditors, as primary obligor and not merely as surety,
the full and prompt payment when due, whether upon maturity, acceleration or
otherwise, of any and all Guaranteed Obligations to the Guaranteed Creditors,
subject to and in accordance with the provisions of this Section 13.”
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,
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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.
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 represent 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 |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President | ||||
| TRICO MARINE ASSETS, INC., as a Guarantor |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President | ||||
| TRICO MARINE OPERATORS, INC., as a Guarantor |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President | ||||
| TRICO MARINE INTERNATIONAL, INC., as a Guarantor |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President | ||||
| TRICO MARINE SERVICES (HONG KONG) LIMITED, as a Guarantor By: Trico Marine Assets, Inc., its Sole Member |
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| By: | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Director | ||||
Amendment No. 1
| COASTAL INLAND MARINE SERVICES LTD. as a Guarantor |
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| By: | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Director | ||||
| SERVICIOS DE APOYO MARITIMO DE MEXICO, S. DE X.X. DE C.V., as a Guarantor |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Manager | ||||
| TRICO SERVICOS MARITIMOS LTDA. as a Guarantor |
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| By: | /s/ Per Thuestad | |||
| Per Thuestad | ||||
| Manager | ||||
| TRICO MARINE CAYMAN, L.P. as a Guarantor By: Trico Holdco, LLC, its general partner By: Trico Marine Services, Inc., its sole member |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President | ||||
| TRICO HOLDCO, LLC as a Guarantor By: Trico Marine Services, Inc., its sole member |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President | ||||
Amendment No. 1
| TRICO INTERNATIONAL HOLDINGS B.V. as a Guarantor |
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| By: | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Director | ||||
| TRICO MARINE INTERNATIONAL HOLDINGS B.V., as a Guarantor |
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| By: | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Director | ||||
| Amendment No. 1 |
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SPECIAL VALUE CONTINUATION PARTNERS, LP, as Lender By: Xxxxxxxxxx Capital Partners, LLC Its: Investment Manager |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Partner | |||
| XXXXXXXXXX OPPORTUNITIES PARTNERS V, LP, as Lender By: Xxxxxxxxxx Capital Partners, LLC Its: Investment Manager |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Partner | |||
| XXXXXXXXXX DIP OPPORTUNITY FUND, LLC, as Lender By: Xxxxxxxxxx Capital Partners, LLC Its: Investment Manager |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Partner | |||
| OBSIDIAN AGENCY SERVICES, INC., as Administrative Agent |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Partner | |||
Amendment No. 1
