SECOND AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
4.9
SECOND
AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) is dated as of
December 1, 2006 and is entered into by and among J. XXX
XXXXXXXXX, S.A., a Panamanian corporation (the “Borrower”), CERTAIN
OF THE GUARANTORS executing the signature pages hereto, CERTAIN FINANCIAL INSTITUTIONS
listed on the signature pages hereto (the “Lenders”), and CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity,
“Administrative Agent”)
and as Collateral Agent (in such capacity, “Collateral Agent”), and is
made with reference to that certain CREDIT AGREEMENT dated as of
June 6, 2006 (as amended by the First Amendment dated August 4, 2006, the “Credit Agreement”) by and
among Borrower, Lenders, Administrative Agent and the other agents party
thereto. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement after giving
effect to this Amendment.
RECITALS
WHEREAS, the Borrower has
requested that Requisite Lenders agree to amend certain provisions of the Credit
Agreement and the Pledge and Security Agreement as provided for herein;
and
WHEREAS, subject to certain
conditions, Requisite Lenders are willing to agree to such
amendments.
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
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SECTION
I.
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Amendments
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1.1
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Amendments to Section
1: Definitions.
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A. Section
1.1 of the Credit Agreement is hereby amended by adding the following
definitions in proper alphabetical sequence:
“Reorganization” means the
transfer of certain Subsidiaries and Joint Ventures of the Borrower such that,
upon the completion thereof, the ownership structure of such Subsidiaries and
Joint Ventures shall be substantially as set forth in Exhibit A to the Second
Amendment (provided
that (i) all of the Stock of such Subsidiaries and Joint Ventures that is owned,
directly or indirectly, by the Borrower on the date of the Second Amendment,
shall be owned, directly or indirectly, by the Borrower and one or more
wholly-owned subsidiaries of MII during and upon the completion of the
Reorganization and (ii) each of the Borrower and McDermott Cayman Holdings, Ltd.
shall receive Fair Market Value in connection with such transfer).
“Reorganization Excluded Subsidiary” means a
Subsidiary of the Borrower which was formed after the Second Amendment Effective
Date solely in connection with the Reorganization and whose purpose is to
facilitate consummation of the Reorganization and that, prior to the
consummation of the Asset Sale permitted by Section 8.4(m) of this Agreement,
will own no assets other than (i) the Stock of the Transferred Subsidiaries, the
Transferred Joint Ventures and other Reorganization Excluded Subsidiaries and
(ii) de minimus amounts of cash contributed in connection with the
Reorganization.
“Second Amendment” means that
certain Second Amendment to Credit Agreement dated as of December 1, 2006 among
the Borrower, the Administrative Agent, the Collateral Agent and the Lenders
listed on the signature pages thereto.
“Second Amendment Effective
Date” means the date of satisfaction of the conditions referred to in
Section III of the Second Amendment.
“Transferred Joint Ventures”
means each of the Joint Ventures of the Borrower listed on Schedule 1 to the
Second Amendment, the Stock of which is owned, directly or indirectly, by the
Borrower, each of which shall be transferred to an Affiliate of the Borrower
pursuant to the Reorganization.
“Transferred Subsidiaries”
means each of the Subsidiaries of the Borrower listed on Schedule 2 to the
Second Amendment, the Stock of which is owned, directly or indirectly, by the
Borrower, each of which shall be transferred to an Affiliate of the Borrower
pursuant to the Reorganization; provided, that each such
Transferred Subsidiary that was a Guarantor immediately prior to the Second
Amendment Effective Date (i) shall continue to remain a Guarantor after the
consummation of the Asset Sale permitted by Section 8.4(m) of this Agreement,
(ii) shall continue to grant the Collateral Agent, for the benefit of the
Secured Parties, liens on its assets pursuant to the Collateral Documents after
the consummation of the Asset Sale permitted by Section 8.4(m) of this Agreement
and (iii) shall execute the Second Amendment and be bound by the relevant terms
of the Credit Agreement as set forth in the Second Amendment.
B. Section
1.1 of the Credit Agreement is hereby further amended by deleting the
definitions of “Guarantors”, “Joint Venture” and “Subsidiary” therein
and replacing them with the following:
““Guarantors” means each Wholly-Owned
Subsidiary of the Borrower, each Mortgaged Vessel Owning Subsidiary, each direct
parent company of a Mortgaged Vessel Owning Subsidiary (other than a
Reorganization Excluded Subsidiary and Barmada McDermott Sdn. Bhd.), each
Transferred Subsidiary that was a Guarantor immediately prior to the Second
Amendment Effective Date, and any other Subsidiary that is deemed to be a
Guarantor pursuant to Section
7.13 hereof; provided that no Captive
Insurance Subsidiary nor any Reorganization Excluded Subsidiary shall be a
Guarantor.”
““Joint Venture” means any
Person (i) in which the Borrower or a Guarantor, directly or indirectly, owns at
least 30% of the Stock or Stock Equivalents of such Person and (ii) that is not
a Subsidiary of the Borrower or a Guarantor. As of the Effective
Date, the Persons listed on Schedule 1.1 are Joint Ventures.”
““Subsidiary” means, with
respect to the Borrower or a Guarantor, as applicable, any Person in which the
Borrower or such Guarantor, directly or indirectly, owns any of the Stock or
Stock Equivalents of such Person; provided that (x)(i) the
financial statements of such Person will be (or should have been) consolidated
with the financial statements of the Borrower (or such Guarantor, as applicable)
in accordance with GAAP and (ii) the Borrower (or such Guarantor, as
applicable), directly or indirectly, controls or has the power to direct or
cause the direction of the management and policies thereof, or (y) with respect
to the Borrower, such Person is a Transferred Subsidiary or a Subsidiary of a
Transferred Subsidiary (unless such Transferred Subsidiary or Subsidiary thereof
has been sold or otherwise disposed of in a manner that is permitted by Section 8.4 (assuming for
such purposes that the direct parent of each Transferred Subsidiary and
Subsidiary thereof is bound by Section 8.4 regardless of
whether it is actually so bound)); provided, further, however, that for purposes of
Article IV, Article VII and Article VIII (excluding Section 8.1), the definition
of “Subsidiary” shall not include any Captive Insurance Subsidiary or any
Reorganization Excluded Subsidiary.”
C. Section
1.1 of the Credit Agreement is hereby further amended by deleting the word “or”
and inserting a comma immediately before clause (c) of the definition of “Change
of Control” and inserting the following language before the period at the end of
such clause (c):
“ or (d)(i) MII shall cease to own and
control, directly or indirectly, such percentage of the issued and outstanding
Stock of the Transferred Subsidiaries and Transferred Joint Ventures as it shall
own, directly or indirectly, on the date of the Second Amendment, or (ii) the
Borrower shall cease to own, directly or indirectly at least a minority
percentage of the issued and outstanding Stock of the Transferred
Subsidiaries; provided that the foregoing
clauses (i) and (ii) shall not prevent the sale, conveyance, transfer, lease or
other disposition of, or sale of shares of Stock of, a Transferred Subsidiary or
Transferred Joint Venture if and to the extent it would have been permitted by
Section 8.4 (assuming
for such purposes that the direct parent of each Transferred Subsidiary and the
direct parent of each Transferred Joint Venture (in each case, to the extent
such parent is an Affiliate of MII) is bound by Section 8.4 regardless of
whether it is actually so bound)”
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1.2
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Amendments to Section
1.3 – Accounting Terms and
Principles.
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Section 1.3 of the Credit Agreement is
hereby amended by adding a new paragraph (c) immediately after paragraph (b)
thereof, such paragraph (c) to read in its entirety as follows:
“(c) If at any time the
financial statements of any of the Transferred Subsidiaries and their
Subsidiaries shall no longer be consolidated with the financial statements of
the Borrower in accordance with GAAP (whether because Financial Accounting
Standards Board Interpretation Number 46 shall no longer apply or for any other
reason whatsoever), then, notwithstanding anything in this Agreement to the
contrary, all references in this Agreement to GAAP when used with respect to the
financial statements or financial condition of, or accounting determinations
with respect to, the Borrower (including, without limitation, in the definitions
of Capital Expenditure, Capital Lease, Capital Lease Obligations, Consolidated
Net Income, Interest Expense, Leverage Ratio, and Material Subsidiary, but
excluding any such reference to GAAP in Sections 6.1(a) and (b) and 7.7) shall
be construed so as to continue to require the consolidation of the financial
statements of such Transferred Subsidiaries and their Subsidiaries with those of
the Borrower (such that, for the avoidance of doubt, any calculation of or use
of any of the defined terms in the foregoing parenthetical shall be made as if
the Borrower and its Subsidiaries and the Transferred Subsidiaries and their
Subsidiaries were considered a consolidated group for such
purposes).”
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1.3
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Amendments to Section
6.1 – Financial Statements.
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Section 6.1 of the Credit Agreement is
hereby amended by inserting a new clause (f) immediately after clause (e)
thereof, such clause (f) to read in its entirety as follows:
“(f) Transferred
Subsidiaries. Promptly after any Responsible Officer obtains
knowledge that the financial statements of the Transferred Subsidiaries are no
longer, or in the next Fiscal Quarter are expected to no longer be,
consolidated with the financial statements of the Borrower in accordance with
GAAP, written notice of such event (unless such event is the result of an Asset
Sale permitted by this Agreement) shall be given to the Administrative Agent,
and promptly thereafter the Borrower shall provide to the Administrative Agent,
in addition to the other financial statements required to be delivered
hereunder, consolidated balance sheets and related statements of income and cash
flows for the periods specified in Sections 6.1(a) and (b) for the Borrower and
its Subsidiaries and the Transferred Subsidiaries and their Subsidiaries on a
consolidated basis (assuming for such purposes that GAAP would require the
consolidation of such financial statements of such Persons).”
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1.4
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Amendments to Section
7.11 – Additional Collateral
and Guaranties.
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A. Section
7.11 of the Credit Agreement is hereby amended by adding the words “(other than
a Reorganization Excluded Subsidiary (excluding McDermott Cayman Holdings, Ltd.,
the minority interest of which shall be required to be pledged by the Borrower
in accordance with Section 7.13(i)))” after the word “Subsidiary” in clause (a)
thereof.
B. Section
7.11 of the Credit Agreement is hereby further amended by adding the words “or a
Reorganization Excluded Subsidiary” immediately after the words “Captive
Insurance Subsidiary” in each place where such words appear in clause (c)
thereof.
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1.5
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Amendment to Section
7.13 – Post-Closing
Covenants.
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Section 7.13 of the Credit Agreement is
hereby amended by inserting new clauses (g), (h), (i) and (j) immediately after
clause (f) thereof, such clauses (g), (h), (i) and (j) to read in their entirety
as follows:
“(g) After the Second
Amendment Effective Date but prior to the consummation of the Reorganization,
the Borrower shall deliver to the Administrative Agent a copy of the limited
liability company agreement or other formation documents, including all
amendments thereto, of J. Xxx XxXxxxxxx Holdings, LLC (f/k/a J. Xxx XxXxxxxxx
Holdings, Inc.) and each Reorganization Excluded Subsidiary, together with a
certificate as to the good standing of J. Xxx XxXxxxxxx Holdings, LLC and each
Reorganization Excluded Subsidiary as of a recent date from the appropriate
governmental authority of the jurisdiction of its organization.
(h) After the Second
Amendment Effective Date but prior to such time as the company that is to be the
direct parent of J. Xxx XxXxxxxxx Holdings, LLC is no longer a direct or
indirect Wholly-Owned Subsidiary of the Borrower, the Borrower shall (i) cause
such direct parent of J. Xxx XxXxxxxxx Holdings, LLC to grant the Collateral
Agent, for the benefit of the Secured Parties, a valid, legal and perfected
first priority security interest (subject only to Liens permitted under the
Credit Agreement) in the Stock of J. Xxx XxXxxxxxx Holdings, LLC, (ii) deliver a
favorable written opinion of (A) Xxxxx Xxxxx L.L.P., counsel to the Loan
Parties, and (B) Xxxx X. Xxxxxx, General Counsel of the Borrower, each in
substantially the form agreed to by the Administrative Agent and the Borrower as
of the Second Amendment Effective Date.
(i) Within 10 Business Days
after the consummation of the Reorganization (or such longer period as the
Administrative Agent may determine in its sole discretion), the Borrower shall
have delivered certificates representing 100% of the Borrower’s interests in
McDermott Cayman Holdings, Ltd., with each such certificate to be accompanied by
a stock power endorsed in blank, and will make or cause to be made such filings
as shall be required to perfect a security interest in such shares under Cayman
Islands law.
(j) The Borrower (i) shall
have delivered favorable written opinions, in each case in substantially
the form agreed to by the Administrative Agent and the Borrower as of the Second
Amendment Effective Date, within (A) 10 Business Days after the Second Amendment
Effective Date (or such longer period as the Administrative Agent may determine
in its sole discretion), of Xxxx X. Xxxxxx, General Counsel of the Borrower, (B)
10 Business Days after the consummation of the Reorganization (or such longer
period as the Administrative Agent may determine in its sole discretion), of
Xxxxx Xxxxx L.L.P., counsel to the Loan Parties, and (ii) agrees to use
commercially reasonable efforts to cause the delivery of favorable written
opinions, in each case in substantially the form agreed to by the Administrative
Agent and the Borrower as of the Second Amendment Effective Date, within 10
Business Days after the consummation of the Reorganization (or such longer
period as the Administrative Agent may determine in its sole discretion) of (A)
Xxxxx, Fábrega & Fábrega, and (B) Gardere Xxxxx Xxxxxx LLP.”
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1.6
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Amendments to Section
8.1 – Indebtedness.
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Section 8.1 of the Credit Agreement is
hereby amended by adding the words “or any Guarantor” immediately before the
proviso in subclause (v) of clause (f) thereof.
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1.7
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Amendments to Section
8.3 – Investments.
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A. Section 8.3 of the Credit Agreement is
hereby amended by deleting clause (e) in its entirety and replacing it with the
following:
“(e) Investments
by (i) the Borrower in any Guarantor (other than a Transferred Subsidiary) or by
any Guarantor in the Borrower or any other Guarantor (other than a Transferred
Subsidiary), (ii) a Subsidiary of the Borrower that is not a Guarantor in the
Borrower or any other Subsidiary (other than a Reorganization Excluded
Subsidiary) of the Borrower; (iii) by the Borrower or any Guarantor in any
Transferred Subsidiary in the form of an intercompany loan; or (iv) by any
Transferred Subsidiary in any of its Subsidiaries (or by any such Subsidiary in
any Transferred Subsidiary).”
B. Section
8.3 of the Credit Agreement is hereby amended by deleting the “and” before
clause (j) of such Section and inserting the following before the period at the
end of such clause (j):
“; and (k) Investments by the Borrower
and the Reorganization Excluded Subsidiaries in the Transferred Subsidiaries,
Transferred Joint Ventures and Reorganization Excluded Subsidiaries consisting
of (i) the capitalization of the Reorganization Excluded Subsidiaries and (ii)
the purchase or similar acquisition by such entities of other Reorganization
Excluded Subsidiaries and the Transferred Subsidiaries and Transferred Joint
Ventures the sole purpose of which is to consummate the
Reorganization”
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1.8
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Amendments to Section
8.4 – Sale of
Assets.
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A. Section
8.4 of the Credit Agreement is hereby amended by adding the words “(other than a
Transferred Subsidiary)” after the words “or any Guarantor” in clause
(h)(i).
B. Section
8.4 of the Credit Agreement is hereby amended by deleting the “and” at the end
of clause (k) thereof, adding the word “; and” at the end of subclause (l)
thereof and inserting a new subclause (m) as follows:
“(m) in connection with the
Reorganization, a sale of substantially all of the Stock of a Reorganization
Excluded Subsidiary to MII.”
C. Section
8.4 of the Credit Agreement is hereby amended by adding the following paragraph
at the end thereof:
“Any sale, conveyance, transfer, lease,
or other disposition, or sale of shares of Stock, or issuance of shares of
Stock, referenced in clause (d) of the definition of Change of Control in excess
of $500,000 per transaction or series of related transactions shall be deemed a
utilization of (and must be permitted by) any of clauses (a) through (m) above
(as applicable).”
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1.9
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Amendments to Section
8.6 – Restrictions on
Fundamental Changes.
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Section 8.6 of the Credit Agreement is
hereby amended by inserting the words “or the Reorganization” immediately after
the words “Permitted Acquisition” in the first line thereof.
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1.10
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Amendments to Section
8.8 – Transactions with
Affiliates.
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Section 8.8 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“The Borrower shall not, and shall not
permit any of its Subsidiaries to, except as otherwise permitted herein, do any
of the following: (a) make any Investment in an Affiliate of the
Borrower that is not a Subsidiary of the Borrower, a Subsidiary of a Guarantor
or a Guarantor, or does not thereby or in connection therewith become, a
Subsidiary of the Borrower, a Guarantor or a Subsidiary of a Guarantor,
(b) transfer, sell, lease, assign or otherwise dispose of any asset (except
pursuant to Section 8.4(k)
or Section 8.4(m)) to any Affiliate of
the Borrower that is not a Guarantor, a Subsidiary of the Borrower or a
Subsidiary of a Guarantor, or does not thereby or in connection therewith become
a Subsidiary of the Borrower, a Guarantor or a Subsidiary of a Guarantor,
(c) merge into or consolidate with or purchase or acquire assets from any
Affiliate of the Borrower that is not a Guarantor, a Subsidiary of the Borrower
or a Subsidiary of a Guarantor, or does not thereby or in connection therewith
become a Subsidiary of the Borrower, a Guarantor or a Subsidiary of a Guarantor,
(d) repay any Indebtedness (except as permitted by Section 8.1(f)) to any
Affiliate of the Borrower that is not, or does not thereby or in connection
therewith become, a Guarantor, a Subsidiary of the Borrower or a Subsidiary of a
Guarantor, (e) enter into any other transaction (including any retention
bonus or other compensation arrangement) directly or indirectly with or for the
benefit of any Affiliate of the Borrower that is not a Guarantor (including
guaranties and assumptions of obligations of any such Affiliate) or
(f) make any management services payments pursuant to the Management
Services Agreement as in effect on the date hereof in an amount in excess of the
amounts required to be paid thereunder, except in each case (excluding clause
(f)) transactions in the ordinary course of business on a basis no less
favorable to the Borrower or such Subsidiary as would be obtained in a
comparable arm’s length transaction with a Person not an
Affiliate.”
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1.11
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Amendments to Section
8.15 – Cancellation of
Indebtedness Owed to It.
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Section 8.15 of the Credit Agreement is
hereby amended by (1) inserting “(i)” immediately before the words “in the
ordinary course of business” and (2) immediately before the period at the end of
such Section inserting the words “or (ii) if such Indebtedness is owed by a
Guarantor to a Loan Party, and such Indebtedness is either (x) cancelled in
exchange for Stock of such Guarantor, (y) converted into Stock of such Guarantor
or (z) converted such that it increases the paid-in-capital of such Loan Party
in such Guarantor”.
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1.12
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Amendments to
Pledge
and Security Agreement.
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The Pledge and Security Agreement is
hereby amended to exclude from the Collateral described therein the Stock of
each Reorganization Excluded Subsidiary (other than McDermott Cayman Holdings,
Ltd.). Following the conversion of J. Xxx XxXxxxxxx Holdings, Inc.
from a corporation to a limited liability company and the grant and perfection
of the security interest contemplated by Section 7.13(h) of the Credit
Agreement, the Collateral Agent agrees to promptly deliver to the Borrower the
cancelled stock certificate of J. Xxx XxXxxxxxx Holdings, Inc. and the related
stock power.
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SECTION
II.
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GUARANTORS
PARTY TO CREDIT AGREEMENT
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2.1
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Counterpart
Agreement.
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Each Guarantor that shall be a
Transferred Subsidiary upon consummation of the Asset Sale permitted by Section
8.4(m) of the Credit Agreement, by executing this Amendment, agrees that (i)
such Guarantor shall become a party to the Credit Agreement as if it were an
original signatory thereto and shall be bound by all of the covenants in Article
VII and Article VIII thereof that are applicable to Subsidiaries of the Borrower
(by way of the Borrower causing such Subsidiaries’ compliance through its
control of them) as if such covenants were directly applicable to such
Guarantors that are Transferred Subsidiaries and their Subsidiaries and all such
covenants (and all defined terms used therein shall also be applicable to such
Transferred Subsidiaries and their Subsidiaries in such manner) shall be read
such that such Guarantors that are Transferred Subsidiaries shall (or shall not,
as the case may be) take the actions described therein and shall (or shall not,
as the case may be) cause their Subsidiaries to take the actions described
therein (and any “baskets” or other exceptions to a covenant shall be calculated
taking into account the usage thereof by the Borrower and its Subsidiaries and
the Guarantor that is a Transferred Subsidiary and its Subsidiaries,
collectively), and (ii) each time the Borrower makes representations and
warranties pursuant to Section 3.2(b) of the Credit Agreement, it shall be
deemed to make such representations and warranties on behalf of such Guarantor
and its Subsidiaries as if such representations and warranties were directly
applicable to such Guarantor and its Subsidiaries.
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2.2
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Reaffirmation.
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Each Guarantor that shall be a
Transferred Subsidiary upon consummation of the Asset Sale permitted by Section
8.4(m) of the Credit Agreement hereby consents to this Amendment and the
transactions contemplated hereby and confirms its respective guarantees,
pledges, grants of security interests and other obligations, as applicable,
under and subject to each of the Loan Documents to which it is a party, and
agrees that, notwithstanding the effectiveness of this Amendment or the
Reorganization, such guarantees, pledges, grants of security interests and other
obligations, and the terms of each of the Loan Documents to which it is a party,
are not impaired or affected in any manner whatsoever (except as expressly set
forth in this Amendment) and shall continue to be in full force and effect and
shall continue to secure all Obligations.
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SECTION
III.
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CONDITIONS
TO EFFECTIVENESS
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This
Amendment shall become effective as of the date hereof only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
A. Execution. The
Administrative Agent shall have received a counterpart signature page of this
Amendment duly executed by each of the Borrower, the Guarantors that will be
Transferred Subsidiaries upon consummation of the Asset Sale permitted by
Section 8.4(m) of the Credit Agreement, and Requisite Lenders.
B. Necessary
Consents. The Borrower shall have obtained all material
consents necessary or advisable in connection with the transactions
contemplated by this Amendment (other than the Reorganization).
C. Collateral
Documents. The Collateral Agent shall have received all
amendments to any Mortgages, duly executed by the applicable Loan Party, and any
other documentation necessary or reasonably advisable in connection with the
transactions contemplated by this Amendment to be filed, registered or recorded
in order to create or maintain in favor of the Collateral Agent for the ratable
benefit of the Secured Parties a valid, legal and perfected first-priority Lien
(subject only to Liens permitted under the Credit Agreement) on, and security
interest in, the Collateral.
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SECTION
IV.
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REPRESENTATIONS
AND WARRANTIES
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In order
to induce Lenders to enter into this Amendment and to amend the Credit Agreement
in the manner provided herein, the Borrower represents and warrants to each
Lender that the following statements are true and correct in all material
respects:
A. Corporate Power and
Authority. The Borrower and each Guarantor that will be a
Transferred Subsidiary has all requisite corporate or other organizational power
and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement and the other Loan Documents.
B. Authorization of
Agreements. The execution and delivery of this Amendment has
been duly authorized by all necessary corporate or other organizational action
on the part of the Borrower and each Guarantor that will be a Transferred
Subsidiary.
C. No Conflict. The
execution and delivery by the Borrower and each Guarantor that will be a
Transferred Subsidiary of this Amendment does not and will not (i) violate (A)
any provision of any law, statute, rule or regulation, or of the certificate or
articles of incorporation or partnership agreement, other constitutive documents
or by-laws of the Borrower or any such Transferred Subsidiary or (B) any
applicable order of any court or any rule, regulation or order of any
Governmental Authority, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
Contractual Obligation of the Borrower or any such Transferred Subsidiary, where
any such conflict, violation, breach or default referred to in clause (i) or
(ii) of this Section IV.C., individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, (iii) except as permitted under the
Credit Agreement, result in or require the creation or imposition of any Lien
upon any of the properties or assets of the Borrower or any such Transferred
Subsidiary (other than any Liens created under any of the Loan Documents in
favor of Collateral Agent on behalf of Lenders), or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
Contractual Obligation of the Borrower or any Transferred Subsidiary except for
such approvals or consents which will be obtained on or before the Second
Amendment Effective Date and except for any such approvals or consents the
failure of which to obtain will not have a Material Adverse Effect.
D. Governmental
Consents. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be
required in connection with the execution and delivery by the Borrower or any
Guarantor that will be a Transferred Subsidiary of this Amendment, except for
such actions, consents and approvals the failure of which to obtain or make
could not reasonably be expected to result in a Material Adverse Effect or which
have been obtained and are in full force and effect.
E. Binding
Obligation. This Amendment has been duly executed and
delivered by the Borrower and each Guarantor that will be a Transferred
Subsidiary and constitutes a legal, valid and binding obligation of the Borrower
and each such Transferred Subsidiary, enforceable against the Borrower and
each such Transferred Subsidiary in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors’ rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
F. Incorporation of Representations and
Warranties From Credit Agreement. The representations and warranties
contained in Article IV of the Credit Agreement are and will be true and correct
in all material respects on and as of the Second Amendment Effective Date to the
same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true and correct in all material respects on and as of such
earlier date.
G. Absence of
Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default, except for the events
expressly being waived hereby.
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SECTION
V.
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MISCELLANEOUS
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A. Effect on
the Credit Agreement and the Other Loan Documents.
(i) Except as
specifically modified by this Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
(ii) The
execution, delivery and performance of this Amendment shall not constitute a
waiver of any provision of, or operate as a waiver of any right, power or
remedy of any Agent or Lender under, the Credit Agreement or any of the other
Loan Documents except as otherwise expressly provided for herein.
B. Headings. Section and
Subsection headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
C. Applicable
Law. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
D. 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 an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
[Remainder of this page intentionally
left blank.]
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NY\1206428.9||
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first written
above.
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BORROWER:
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J.
XXX XXXXXXXXX, S.A.
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By:_________________________
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Name: Xxxxx
X. Xxxxx
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Title: Vice
President and Treasurer
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TRANSFERRED
SUBSIDIARIES
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THAT
ARE GUARANTORS
|
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SIGNING
CREDIT AGREEMENT:
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GLOBAL
ENERGY MCDERMOTT LIMITED
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J.
XXX XXXXXXXXX ENGINEERING,LLC
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J.
XXX XXXXXXXXX SOLUTIONS, INC.
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J.
XXX XXXXXXXXX TECHNOLOGY,INC.
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J.
XXX XXXXXXXXX UNDERWATERSERVICES,
INC.
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J.
XXX XXXXXXXXX WEST AFRICAHOLDINGS,
INC.
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J.
XXX XXXXXXXXX WEST AFRICA,INC.
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J.
XXX XXXXXXXXX DE MEXICO, X.X.XX
X.X.
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XXXXXXXXX
TRADE CORPORATION
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MENTOR
SUBSEA TECHNOLOGYSERVICES, INC.
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OFFSHORE
PIPELINESINTERNATIONAL, LTD.
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OPI
VESSELS, INC.
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OPMI,
LTD.
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SABINE
RIVER REALTY, INC.
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SPARTECH,
INC.
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By:_________________________
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Name: Xxxxx
X. Xxxxx
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Title: Treasurer
of each of the
above-namedGuarantors
|
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J.
XXX XXXXXXXXX HOLDINGS, INC.
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J.
XXX XXXXXXXXX, INC.
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By:_________________________
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Name: Xxxxx
X. Xxxxx
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Title: Vice
President and Treasurer of each of the above-named
Guarantors
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MCDERMOTT
SERVICOS DECONSTRUCAO, LTDA.
|
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By: J.
Xxx XxXxxxxxx, Inc., its majorityequity
holder
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By:_________________________
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Name: Xxxxx
X. Xxxxx
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Title: Treasurer
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OFFSHORE
PIPELINES SDN. BHD.
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By: Offshore
Pipelines International,Ltd., its sole
shareholder
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By:_________________________
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Name: Xxxxx
X. Xxxxx
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Title: Treasurer
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J.
XXX XXXXXXXXX (NIGERIA) LTD.
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XXXXXXXXX
INTERNATIONAL B.V.
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By:_________________________
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Name: Xxxxxx
X. Xxxxxx
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Title: Assistant
Secretary of each of theabove-named
Guarantors
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Executed
as a Deed by:
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J.
XXX XXXXXXXXX INTERNATIONALVESSELS,
LTD.
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By:_________________________
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Name: Xxxxxx
X. Xxxxxx
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Title: Attorney-in-Fact
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In
the presence of:
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By:_________________________
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Name:
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Title:
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AGENT
and LENDER:
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CREDIT
SUISSE, CAYMAN ISLANDS BRANCH,
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as
Administrative Agent, Lender, Synthetic Investor and Collateral
Agent
|
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By: /s/ Xxxxxxxxx
Xxxxxxx
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Name: Xxxxxxxxx
Xxxxxxx
Title: Vic
President
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By: /s/ Xxxxxx X.
Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title: Associate
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LENDERS:
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By
signing below, you have indicated your consent to the Second Amendment to the
Credit Agreement
Name of
Institution:
Credit
Suisse Loan Funding LLC
By: /s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title: Managing
Director
The Bank
of Nova Scotia
By: /s/ Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title: Senior
Manager
Calyon
New York Branch
By: /s/ Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxx
Xxxxxxxx
Name:
Xxx Xxxxxxxx
Title: Managing
Director
Bank of
America, N.A
By: /s/ Xxxxxx X.
Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title: Managing
Director
Amegy
Bank National Association
By: /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title: Senior
Vice President
ING
Investment Management CLO III, LTD
By: ING
Alternative Asset Management LLC, as its investment manager
By: /s/ Xxxxxxx X. XxXxxxx,
CFA
Name:
Xxxxxxx X. XxXxxxx, CFA
Title: Vice
President
ING
Senior Income Fund
By: ING
Investment Management Co., as its Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx,
CFA
Name:
Xxxxxxx X. XxXxxxx, CFA
Title: Vice
President
ING Prime
Rate Trust
By: ING
Investment Management Co., as its Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx,
CFA
Name:
Xxxxxxx X. XxXxxxx, CFA
Title: Vice
President
ING
International (II) – Senior Bank Loans Euro
By: ING
Investment Management Co., as its Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx,
CFA
Name:
Xxxxxxx X. XxXxxxx, CFA
Title: Vice
President
PNC Bank
National Association
By: /s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: Senior
Vice President
National
City Bank
By: /s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title: Vice
President
Natexis
Banques Populaires
By: /s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title: Managing
Director
By: /s/ Xxxxx X. XxXxxxx,
III
Name:
Xxxxx X. XxXxxxx, III
Title: Managing
Director
Regions
Bank
By: /s/ Xxxxx
Xxxx
Name:
Xxxxx Xxxx
Title: Senior
Vice President
Wachovia
Bank, National Association
By: /s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title: Vice
President
JPMorgan
Chase Bank, N.A.
By: /s/ Xxxxxx X.
Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title: Senior
Vice President
UBS Loan Finance LLC,
as a Synthetic Investor and
Lender
By: /s/ Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title: Director
Banking
Products Services,
U.S.
By: /s/ Xxxx X.
Xxxx
Name:
Xxxx X. Xxxx
Title: Associate
Banking
Products Services,
U.S.
