SECOND AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 31, 1999
AMONG
TRICO MARINE OPERATORS, INC.
TRICO MARINE ASSETS, INC.,
AND
TRICO MARINE SERVICES, INC.,
the BANKS
XXXXX FARGO BANK, N.A.,
as ISSUING BANK
and
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
and
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH
AS
DOCUMENTATION AGENT
INDEX OF DOCUMENTS
1. Second Amendment to Third Amended and Restated Credit Agreement;
2. Secretary's Certificates;
A. Trico Marine Services, Inc. Secretary's Certificate;
B. Trico Marine Assets, Inc. Secretary's Certificate;
C. Trico Marine Operators, Inc. Secretary's Certificate; and
3. UCC Searches;
A. Trico Marine Services, Inc. Secretary's Certificate;
B. Trico Marine Assets, Inc. Secretary's Certificate;
C. Trico Marine Operators, Inc. Secretary's Certificate; and
4. Fee Letter (Xxxxx Fargo Bank has retained the "original" executed Second
Amended Fee Letter); and
5. Original executed counterpart Opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Xxxxxxx.
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (hereinafter called this "AMENDMENT") is entered into effective as of
December 31, 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. ("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 ("ISSUING
BANK"), and (e) XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as
administrative agent for itself, the Issuing Bank and such financial
institutions ("ADMINISTRATIVE AGENT"), CHRISTIANIA BANK OG KREDITKASSE ASA, New
York Branch, as documentation agent for itself and such financial institutions
("DOCUMENTATION AGENT") (collectively "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 "RESTATED 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 Borrowers, the Parent, the Banks, the Issuing Bank, the
Documentation Agent and the Administrative Agent entered into a First Amendment
to Third Amended and Restated Revolving Credit Agreement dated as of September
30, 1999 (the "FIRST AMENDMENT"); and
WHEREAS, the Restated Agreement, as amended by the First Amendment, is
hereinafter called 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) Section 1.1 of the Agreement is hereby amended by adding the
following definitions thereto in the correct alphabetical order:
"Consolidated Adjusted EBITDA. For any period, the consolidated Net
Income of the Parent and its Subsidiaries (excluding the Norwegian
Subsidiaries) for such period, after all expenses and other proper charges,
but before payment or provision for any income taxes, interest expense,
depreciation or amortization for such period, determined on a consolidated
basis for such Persons in accordance with generally accepted accounting
principles."
"Norwegian Subsidiaries. Trico Shipping and Trico Supply and their
respective Subsidiaries."
(b) Section 1.1 of the Agreement is hereby amended by deleting the
definition of "Debt Service Coverage Ratio" therefrom and substituting the
following definition of "Debt Service Coverage Ratio" in lieu thereof:
"Debt Service Coverage Ratio. As at the end of any fiscal quarter, the
ratio of (a) the consolidated Operating Cash Flow of the Parent and its
Subsidiaries for the period of the four (4) consecutive fiscal quarters of
the Parent ending on such date to (b) consolidated Total Debt Service of
the Parent and its Subsidiaries for the period of four (4) consecutive
fiscal quarters of the Parent ending on such date; provided, that when
calculating the Debt Service Coverage Ratio for any Test Period in which a
Triggering Acquisition occurred, the calculation of the Debt Service
Coverage Ratio shall be made on a Pro Forma Basis."
(c) Section 1.1 of the Agreement is hereby amended by deleting the
definition of "Leverage Ratio" therefrom and substituting the following
definition of "Leverage Ratio" in lieu thereof:
"Leverage Ratio. As at the end of any fiscal quarter, the ratio of (a) the
consolidated Funded Debt of the Parent and its Subsidiaries at the end of
the fiscal quarter of the Parent ending on such date, less the sum of any
unrestricted cash balances of the Parent and its Subsidiaries in excess of
$5,000,000 that are freely available to pay Total Debt Service of the
Parent and its Subsidiaries at the end of the fiscal quarter of the Parent
ending on such date, to (b) Consolidated EBITDA of the Parent and its
Subsidiaries for the period of the four (4) consecutive fiscal quarters of
the Parent ending on such date; provided that when calculating the Leverage
Ratio for any Test Period in which a Triggering Acquisition occurred, the
calculation of the Leverage Ratio shall be made on a Pro Forma Basis."
(d) Section 1.1 of the Agreement is hereby amended by deleting the
definition of "Pricing Grid" therefrom and substituting the following definition
of "Pricing Grid" in lieu thereof::
"Pricing Grid. The annualized rates (stated in terms of basis points
("bps")) set forth
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below for the Applicable Margin and Commitment Fee based upon the Leverage
Ratio computed at the end of the immediately preceding quarter and the
Usage (defined below) as follows:
LEVEL LEVERAGE RATIO BASE RATE EUROCURRENCY
-------- ---------------------- LOAN RATE COMMITMENT
(BPS) LOAN (BPS) FEE (BPS)
-------------- ----------------- ------------
I less than 1.75x 25.0 125.0 25.0
II 1.75x or more but 25.0 150.0 25.0
less than 2.25x
III 2.25x or more but 37.5 175.0 37.5
less than 2.75x
IV 2.75x or more but 37.5 200.0 37.5
less than 3.25x
V 3.25x or more but 50.0 225.0 50.0
less than 4.50x
VI 4.50x or more but 50.0 250.0 50.0
less than 6.00x
VII 6.00x or greater 75.0 325.0 50.0
If the Leverage Ratio is 6.00 to 1.00 or greater at any time, (a) and Usage
exceeds $40,000,000 but is less than or equal to $45,000,000 at any such
time, the Applicable Margin for Base Rate Loans will increase to 100.0
basis points, the Applicable Margin for Eurocurrency Rate Loans will
increase to 350.0 basis points, and the Commitment Fee will increase to
62.5 basis points, and (b) and Usage exceeds $45,000,000 at any such time,
the Applicable Margin for Base Rate Loans will increase to 125.0 basis
points, the Applicable Margin for Eurocurrency Rate Loans will increase to
375.0 basis points, and the Commitment Fee will increase to 75.0 basis
points. For purposes of this definition "USAGE" shall mean, as at any date
of determination, the sum of Outstanding Loans, Maximum Drawing Amount and
Unpaid Reimbursement Obligations on such date of determination.
The Applicable Margin and the Commitment Fee shall be determined for each
period commencing on an Adjustment Date through the date immediately
preceding the next Adjustment Date (each a "Rate Adjustment Period"), the
Applicable Margin or Commitment Fee, as applicable, shall be the applicable
percentage set forth on the Pricing Grid with respect to the Leverage
Ratio, calculated on a Pro Forma Basis, if applicable, as of the end of the
fiscal quarter of the Borrowers immediately preceding the date of the
Compliance Certificate relating to such Adjustment Date; provided, however,
the Applicable Margin and the Commitment Fee shall increase or decrease, as
applicable, in accordance with the terms of the immediately preceding
paragraph, from time to time, at any time, simultaneously with changes in
Usage. If the Borrower shall fail to deliver any Compliance Certificate
pursuant to (S)8.4(c) hereof, then, for the period commencing on the date
such Compliance Certificate was due pursuant to (S)8.4(c) through the
Adjustment Date immediately following the date on which such Compliance
Certificate is delivered, the Applicable Margin and the
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Commitment Fee shall be that corresponding to Level VII of the Pricing
Grid. Notwithstanding the foregoing, the Applicable Margin and Commitment
Fee shall be set at Level VII from the Closing Date until the first
Adjustment Date occurring after the Closing Date."
(e) Section 8.4 of the Agreement is hereby amended by deleting
subsection 8.4(b) therefrom and substituting the following subsection 8.4(b) in
lieu thereof:
"(b) as soon as practicable, (i) but in any event not later than forty-
five (45) days after the end of each of the first three fiscal quarters of
the Parent, copies of the unaudited consolidated balance sheet of the
Parent and its Subsidiaries as at the end of such quarter, and the related
consolidated statement of income and consolidated statement of cash flow
for the portion of the Parent's fiscal year then elapsed, all in reasonable
detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial or
accounting officers of each of the Borrowers and the Parent that the
information contained in such financial statements fairly presents the
financial position of the Parent and its Subsidiaries on the date thereof
(subject to year-end adjustments), and (ii) but in any event not later
thirty(30) days after the end of each calendar month of the Parent, copies
of the unaudited consolidated and consolidating balance sheets of the
Parent and its Subsidiaries as at the end of such calendar month, and the
related consolidated and consolidating statements of income for the
calendar month then elapsed, all in reasonable detail and prepared in
accordance with generally accepted accounting principles, together with a
certification by the principal financial or accounting officers of each of
the Borrowers and the Parent that the information contained in such
financial statements fairly presents the financial position of the Parent
and its Subsidiaries on the date thereof (subject to year-end
adjustments);"
(f) The Agreement is hereby amended further by deleting Section 10.1
therefrom and substituting the following Section 10.1 in lieu thereof:
"SECTION 10.1 Debt Service Coverage Ratio. The Parent and the Borrowers will not
permit the Debt Service Coverage Ratio, determined at the end of each fiscal
quarter of the Parent ending during a period ending on the dates set forth in
the table below, to be less than the ratio set forth opposite such period in
such table:
PERIOD ENDING MINIMUM RATIO
---------------------------------------------------
12/31/99 0.40:1.00
---------------------------------------------------
3/31/00 0.40:1.00
---------------------------------------------------
6/30/00 0.55:1.00
---------------------------------------------------
9/30/00 0.75:1.00
---------------------------------------------------
12/31/00 1.20:1.00
---------------------------------------------------
3/31/01 and the last day of each 1.50:1.00"
fiscal quarter thereafter
---------------------------------------------------
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(g) The Agreement is hereby amended further by deleting Section 10.2
therefrom and substituting the following Section 10.2 in lieu thereof:
"SECTION 10.2 Leverage Ratio. The Parent and the Borrowers will not permit
the Leverage Ratio, determined as at the end of each fiscal quarter of the
Parent ending during a period ending on the dates set forth in the table
below, to be greater than the ratio set forth opposite such period in such
table:
PERIOD ENDING MAXIMUM RATIO
--------------------------------------------------
12/31/99 12.75:1.00
--------------------------------------------------
3/31/00 12.75:1.00
--------------------------------------------------
6/30/00 9.50:1.00
--------------------------------------------------
9/30/00 8.50:1.00
--------------------------------------------------
12/31/00 6.50:1.00
--------------------------------------------------
3/31/01 5.00:1.00
--------------------------------------------------
6/30/01 and the last day of 4.50:1.00"
each fiscal quarter thereafter
--------------------------------------------------
(h) The Agreement is hereby amended further by adding the following
Section 10.6 thereto immediately after the end of Section 10.5:
"SECTION 10.6 Consolidated Adjusted EBITDA. (i) The Parent and the
Borrowers will not permit the Consolidated Adjusted EBITDA, determined as
at the end of each calendar month ending on the dates set forth in the
table below, to be less than the amount set forth opposite such date in
such table, for any two (2) consecutive calendar months or more:
PERIOD ENDING MINIMUM AMOUNT
----------------------------------------------------
1/31/00 $ 650,000
----------------------------------------------------
2/28/00 $ 900,000
----------------------------------------------------
3/31/00 $ 1,250,000
----------------------------------------------------
4/30/00 $ 1,400,000
----------------------------------------------------
5/31/00 $ 1,800,000
----------------------------------------------------
6/30/00 $ 2,500,000
----------------------------------------------------
7/31/00 $ 2,750,000
----------------------------------------------------
8/31/00 and the last day of each $3,000,000"
calendar month thereafter
----------------------------------------------------
(ii) The Parent and the Borrowers will not permit the Consolidated Adjusted
EBITDA, determined as at the end of each fiscal quarter of the Parent
ending during each period ending on the dates set forth in the table below,
to be less than the amount set forth opposite such period in such table:
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PERIOD ENDING MINIMUM AMOUNT
---------------------------------------------------
3/31/00 $ 2,800,000
---------------------------------------------------
6/30/00 $ 5,700,000
---------------------------------------------------
9/30/00 $ 8,750,000
---------------------------------------------------
12/31/00 and the last day of $9,000,000"
each fiscal quarter thereafter
---------------------------------------------------
(i) The Agreement is hereby amended further by deleting Schedule 7.19
therefrom and substituting Schedule 7.19 hereto in lieu thereof.
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 all accrued and unpaid legal fees and
expenses referred to in Section 16 of the Agreement and Section 7 hereof.
(d) 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.
6
(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 December 31, 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 December 31, 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.
7
(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' 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,
8
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 incurred 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
9
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. Loan Documents. This Amendment is a Loan Document.
SECTION 17. 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 18. 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.
10
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 /s/ Signature Appears Here
------------------------------------------
Name:
Title:
TRICO MARINE ASSETS, INC., a Delaware
corporation
By /s/ Signature Appears Here
------------------------------------------
Name:
Title:
TRICO MARINE SERVICES, INC, a
Delaware corporation
By /s/ Signature Appears Here
------------------------------------------
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, individually and as
Administrative Agent
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A., as Issuing Bank
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
CHRISTIANIA BANK OG KREDITKASSE
ASA, NEW YORK BRANCH, individually and
as Documentation Agent
By /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
By /s/ Signature Appears Here
----------------------------
Name: Name Appears Here
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
BANK ONE LOUISIANA, N.A., individually
and as Syndication Agent
By /s/ J. Xxxxxxx Xxxxx, Xx.
--------------------------------------
Name: J. Xxxxxxx Xxxxx, Xx.
Title: First Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
HIBERNIA NATIONAL BANK
By /s/ Xxxx Xxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxx
Title: Assistant Vice President
SCHEDULE 7.19
SUBSIDIARIES
The following is a list of all Subsidiaries of the Parent.
SUBSIDIARY OWNERSHIP JURISDICTION OF
INCORPORATION
Trico Marine Assets, Inc. 100% owned by Parent Delaware
Trico Marine Operators, Inc. 100% owned by Parent Louisiana
Trico Marine International, Ltd. 100% owned by Parent Cayman Islands
Trico Marine International Holdings B.V. 100% owned by Parent Netherlands
Trico Marine International, Inc. 100% owned by Assets Louisiana
Trico Supply ASA 100% owned by Parent Norway
Trico Shipping AS 100% owned by Trico Norway
Supply ASA
Trico Supply (UK) Limited 100% owned by Trico England and
Supply ASA Wales
Albyn Marine Limited 100% owned by Trico England and
Supply (UK) Limited Wales
Trico Servicos Maritimos Ltda. 99.99% owned by Parent Brazil
and 0.01% owned by
Trico Marine Operators,
Inc.
