AMENDMENT NO. 2 TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT AND LOAN DOCUMENTS
THIS AMENDMENT dated as of June 17, 2005 (this "Amendment"), under the
Debtor-in-Possession Credit Agreement dated as of January 12, 2005, as amended
by that certain Amendment No. 1 to Debtor-in-Possession Credit Agreement and
Loan Documents dated as of March 31, 2005 (the "DIP Credit Agreement"), among
Torch Offshore, Inc., a Delaware corporation (the "Borrower"), Torch Offshore,
LLC, a Delaware limited liability company ("TOLLC") and Torch Express, LLC, a
Louisiana limited liability company ("TELLC"; TOLLC and TELLC are each referred
to herein as a "Guarantor"), Regions Bank, for itself as a "Lender" defined
under the DIP Credit Agreement ("Regions") and Export Development Canada, as a
Lender ("EDC").
The parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the DIP Credit
Agreement and not defined herein has the meaning assigned to such term in the
DIP Credit Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the DIP Credit Agreement shall,
after this Amendment becomes effective, refer to the DIP Credit Agreement as
amended hereby.
SECTION 2. Amendments. (a) Each of the following definitions contained
in Section 1.1 of the DIP Credit Agreement is hereby amended and restated in its
entirety as follows:
Termination Date means the earlier to occur of (i) August 5,
2005 (which date may be extended up to 90 additional days thereafter
upon the written consent of the Agent and the Lenders in the exercise
of their sole discretion, such consent, if any, to be conditioned,
among other things, upon receipt of a new Budget and the Agent's and
the Lenders' complete satisfaction therewith), (ii) the Consummation
Date, and (iii) the acceleration of the Loans and the termination of
the Line of Credit Commitments in accordance with the terms hereof.
(b) Section 8.3 of the DIP Credit Agreement is hereby amended and
restated in its entirety as follows:
8.3 Use of Proceeds. Borrower covenants and agrees that the
proceeds of the Line of Credit Loans will be used solely as set forth
in the 9 week cash flow forecast as agreed upon between the Borrower,
the Agent and the Lenders (as may be amended from time to time, the
"Budget"). The Letters of Credit will be used solely for the
requirements of the Company Business in the ordinary course of
business. In no event may the proceeds of any Loan or Letter of Credit
be used in violation of any applicable law or regulation.
SECTION 3. Representations. The Borrower and each Guarantor represents
and warrants that (i) the representations and warranties set forth in the Loan
Documents are true and correct in all material respects on and as of the date
hereof with the same effect as if made on and as of such date and (ii) after
giving effect to this Amendment, no Default or Event of Default under the DIP
Credit Agreement has occurred and is continuing on such date.
SECTION 4. Reaffirmation; Release. Borrower hereby reaffirms and
restates each and every agreement, covenant, warranty and representation set
forth in the DIP Credit Agreement, each Note and the other Loan Documents to
which it is a party, as amended and affected by this Amendment. Each Guarantor
hereby reaffirms and restates each and every agreement, covenant, warranty and
representation set forth in the DIP Credit Agreement, the Continuing Guarantees,
the Security Documents and the other
Loan Documents to which it is a party, as amended and affected by this
Amendment. The Borrower and each Guarantor further acknowledges, represents and
warrants that the Loan Documents, as amended and affected by this Amendment,
constitute valid and enforceable obligations of Borrower and each Guarantor as
of this date, free from any defense, counterclaim, offset or recoupment. The
Borrower and each Guarantor hereby waives, releases and discharges Agent and the
Lenders from any and all claims, demands, actions or causes of action arising
out of or in any way relating to the Loans and the other Obligations, the Credit
Agreement and the other Loan Documents and any documents, agreements, dealings,
or other matters connected with the Loans, any Letter of Credit or other
Obligations, including, without limitation, all known and unknown matters,
claims, transactions, or things occurring prior to the date of this Amendment
related to the Loans or any Letter of Credit.
SECTION 5. No Waiver or Implication; No Novation. Nothing herein shall
constitute a waiver of any default, whether known or unknown, which may exist
under the Loan Documents, except as expressly set forth herein. No action,
inaction or agreement by the Agent or any Lender, including, without limitation,
any extension, indulgence, waiver, consent or agreement of modification which
may have occurred or have been granted or entered into (or which may be
occurring or be granted or entered into hereunder or otherwise) with respect to
nonpayment of the Loans or reimbursement for draws under any Letter of Credit or
any portion thereof, or with respect to matters involving security for the Loans
or reimbursement for draws under any Letter of Credit, or with respect to any
other matter relating to the Loans or reimbursement for draws under any Letter
of Credit, shall require or imply any future extension, indulgence, waiver,
consent or agreement by Agent or any Lender. Borrower and each Guarantor hereby
acknowledges and agrees that none of the Agent and the Lenders has made any
agreement, and none of them is in anyway obligated, to grant any future
extension, indulgence, waiver or consent with respect to the Loans, any Letter
of Credit or any matter relating to the Loan Documents. This Amendment shall not
constitute a novation of the Loans, any Note, the DIP Credit Agreement or any
other of the Loan Documents, and the terms and provisions of the Loan Documents
are hereby affirmed and shall remain valid and in full force and effect as
amended and affected by this Amendment.
SECTION 6. Governing Law; Counterparts; Expenses; Successors and
Assigns. This Amendment shall be governed by and construed in accordance with
the laws of the State of Louisiana. This Amendment may be signed and delivered
in any number of counterparts (including by facsimile), each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. Borrower agrees to promptly pay the attorney fees and
expenses incurred by the Agent and the Lenders in connection with the drafting,
negotiation, execution, delivery and performance of this Amendment. This
Amendment shall be binding upon and inure to the benefit of Borrower, each
Guarantor, Agent and the Lenders and their respective successors and assigns,
whether voluntary by act of the parties or involuntary by operation of law.
SECTION 7. Effectiveness. This Amendment shall become effective as of
the date hereof on the date when the Agent shall have received from the
Borrower, each Guarantor and each Lender a counterpart hereof signed by such
party.
[signatures contained on the next page]
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IN WITNESS WHEREOF, Borrower, the Guarantors, the Agent and the Lenders
have executed this Amendment as of the date first written above.
TORCH OFFSHORE, INC.
By:
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Name:
Title:
TORCH OFFSHORE, L.L.C.
By:
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Name:
Its Manager
TORCH EXPRESS, L.L.C.
By:
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Name:
Its Manager
REGIONS BANK, as a Lender and as Agent
By:
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Xxxx X. Xxxxxxxxxxx
Senior Vice President
EXPORT DEVELOPMENT CANADA, as a Lender
By:
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Xxxx Xxxxxxxx
Manager Special Risks
By:
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Xxxxx Xxxxxx
Portfolio Manager
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