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EXHIBIT 10.1
THIS FIRST AMENDMENT TO SENIOR REVOLVING CREDIT AGREEMENT (the "First
Amendment") dated as of August 31, 1998, is among TRANSCOASTAL MARINE SERVICES,
INC. (the "Borrower"), each of the lenders that is a signatory thereto or which
becomes a signatory thereto (individually, together with its successors and
assigns, a "Lender" and collectively, the "Lenders") and JOINT ENERGY
DEVELOPMENT INVESTMENTS II LIMITED PARTNERSHIP, agent for the Lenders (in such
capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower and Lenders entered into that certain Senior
Revolving Credit Agreement (the "Senior Credit Agreement") dated as of October
28, 1997; and
WHEREAS, the Borrower has entered into that certain Stock Purchase
Agreement and Merger Agreement, dated as of August 1, 1998, among Borrower,
TransCoastal Acquisition, Inc. (the "Acquisition Company"), ▇▇▇▇▇▇▇ GMP
International, Inc., ▇▇▇▇▇▇▇ Marine, Inc., ▇▇▇▇▇▇▇ Nigeria, Ltd., Servicios y
Construcciones Petroleras Ventura, C.A., Ventura Resources, Inc., and the
Shareholders of the ▇▇▇▇▇▇▇ Group (the "Acquisition Agreement"); and
WHEREAS, in connection with the Acquisition, the Borrower has requested
and the Lenders have agreed to amend certain provisions of the Senior Credit
Agreement; and
WHEREAS, in consideration of the premises and the mutual covenants
herein contained, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined terms. All capitalized terms which are defined in
the Senior Credit Agreement, but which are not defined in this First Amendment,
shall have the same meanings as defined in the Senior Credit Agreement. Unless
otherwise indicated, all sections referenced in this First Amendment refer to
the Senior Credit Agreement.
Section 2. Amendments to the Senior Credit Agreement.
2.1 Section 1.02 is amended by replacing in its entirety the
following definition:
"Termination Date" shall mean, unless the Commitments are sooner
terminated pursuant to Section 2.03(b) or 10.02 hereof, January 31,
2000.
2.2 Section 9.12 is restated in its entirety to read as follows:
The Borrower will not make any expenditures for fixed or capital assets
(including the allocated principal portion of capital lease payments)
if, after giving effect thereto, the aggregate of all such expenditures
and amounts would exceed $7,000,000 during any fiscal year and provided
any such expenditures in excess of $2,000,000 shall require the prior
written approval of the Majority Lenders. To the extent
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approval for a capital expenditure has been obtained as aforesaid such
expenditure shall not be included in the $7,000,000 limit.
2.3 Section 8.01(h) is restated in its entirety to read as
follows:
(h) Promptly upon their becoming available, (i) monthly
updates to the Borrower's annual budget and within 45 days after the
end of each month, variance analysis and (ii) within 25 days after the
end of each month, a report of the current backlog (including a summary
of all contracts, amounts, dates, counterparties and type of work) as
at the end of such month, in form and substance reasonably satisfactory
to the Agent.
2.4 Section 9.07 is restated in its entirety to read as follows:
Section 9.07 Limitation on Leases. Neither the Borrower nor
any Subsidiary will create, incur, assume or suffer to exist any
obligation for the payment of rent or hire of Property of any kind
whatsoever (real or personal including capital leases), under leases or
lease agreements which would cause the aggregate amount of all payments
made by the Borrower and the Subsidiaries pursuant to all such leases
or lease agreements to exceed $1,200,000 in any period of twelve
consecutive calendar months during the life of such leases (excluding
any leases in effect on August 31, 1998 that were entered into by
▇▇▇▇▇▇▇ GMP International, Inc.
or any Subsidiary thereof).
2.5 Section 10.01 is amended by restating Section 10.01(j) in its
entirety as follows:
(j)(i) if any Person or Persons constituting a group (as such
term is used in Rule 13d-5 under the Exchange Act as in effect on the
date hereof) shall, in the aggregate, directly or indirectly, control
or own (beneficially or otherwise) more than 30% (by number of shares)
of the issued and outstanding voting stock of the Borrower, or (ii) 50%
of the individuals who, as of the date hereof, constitute the
Borrower's board of directors (together with any new director whose
election by the Company's stockholders was approved by a vote of at
least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or
nominations for election was previously so approved) cease for any
reason to constitute a majority of the Borrower's board of directors
then in office; or
2.6 Section 10.01 is amended by redesignating Section 10.01(l)
as Section 10.01(k) and inserting a new Section 10.01(l) as
follows:
(l) the Borrower fails to deliver, on or before September 14,
1998, a legal opinion, in form and substance satisfactory to the Agent
from ▇'▇▇▇▇▇ & ▇▇▇▇▇ concerning the First Amendment.
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Section 3. Representations and Warranties. The Borrower hereby affirms
that as of the date of execution and delivery of this First Amendment, except as
affected by the transactions contemplated in this First Amendment, all
representations and warranties contained in the Senior Credit Agreement are true
and correct in all material respects as though made on and as of the date hereof
and no Default or Event of Default shall have occurred and be continuing.
Section 4. Effectiveness. This First Amendment shall be effective, as
of the date first written above, upon the satisfaction of the following
conditions:
(a) A certificate of the Secretary or Assistant Secretary of
each of the Borrower and the Acquisition Company setting forth (i)
resolutions of its board of directors with respect to the
authorizations of the Borrower and the Acquisition Company as the case
may be, to execute and deliver (x) this First Amendment and/or the
other Loan Documents to which it is a party, and (y) the Acquisition
Agreement, (ii) the officers of the Borrower and the Acquisition
Company who are authorized to sign the Loan Documents to which Borrower
or Acquisition Company is a party, (iii) specimen signatures of the
authorized officers, and (iv) the articles or certificate of
incorporation and bylaws of the Acquisition Company, certified as being
true and complete.
(b) Certificates of the appropriate state agencies with
respect to the existence, qualifications, and good standing of the
Borrower and the Acquisition Company, and in the case of the
Acquisition Company, the Certificate of Merger (as such term is defined
in the Acquisition Agreement).
(c) The Security Instruments described in Exhibit A, hereto
duly completed and executed in sufficient number of counterparts for
recording, if necessary.
(d) A certificate of insurance coverage for the Acquisition
Company, evidencing the insurance required pursuant to Section 7.19 of
the Senior Credit Agreement.
(e) Payment of the fee required under Section 6 hereof.
(f) Execution of documents contemplated by the Acquisition
Agreement.
(g) A copy of the letter from the Federal Trade Commission
notifying the Borrower of the termination of the waiting period under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976, as amended.
Section 5. Reference to and Effect on Senior Credit Agreement.
(a) On or after the date first written above, each reference
in the Senior Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import, and each reference to the
Senior Credit Agreement in any certificate or other document or
instrument delivered in connection therewith, shall mean and be a
reference to the Senior Credit Agreement as amended hereby.
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(b) Except as specifically amended above, the Senior Credit
Agreement is and shall continue to be in full force and effect and is
hereby ratified and confirmed.
Section 6. Restructuring Fee. The Borrower agrees to pay on the date
hereof a $175,000 restructuring fee to the Agent in connection with the
preparation, execution, and delivery of this First Amendment.
Section 7. Counterparts. This First Amendment may be executed by one
or more of the parties hereto in any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 8. No Oral Agreement. THIS WRITTEN FIRST AMENDMENT AND THE
OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH 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
OTHER UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 9. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, OTHER THAN
THE CONFLICT OF LAWS RULES THEREOF. ALL CONTROVERSIES OR CLAIMS BETWEEN OR AMONG
THE PARTIES HERETO SHALL BE DETERMINED IN THE MANNER PROVIDED IN THE SENIOR
CREDIT AGREEMENT.
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The parties hereto have caused this First Amendment to be duly executed
as of the day and year first above written.
BORROWER: TRANSCOASTAL MARINE SERVICES, INC.
By:
Name:
Title:
LENDER AND AGENT: JOINT ENERGY DEVELOPMENT
INVESTMENTS II LIMITED
PARTNERSHIP
By: Enron Capital Management II Limited
Partnership, its sole general partner
By: Enron Capital II Corp., its sole general
partner
By:
Name:
Title:
Signature Page - 1
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EXHIBIT A
1. Undated Stock Powers and Stock Certificates of Acquisition Company
2. Security Agreement executed by Acquisition Company covering Stock
3. First Amendment to Guaranty Agreement dated November 14, 1997
4. Security Agreement (First Priority) executed by Acquisition Company
covering accounts, etc.
5. Financing Statements executed by Acquisition Company with respect to
items 2 and 4 above
6. First Supplement to Security Agreement (Stock) executed by the Borrower
pledging the stock of Acquisition Company
7. Financing Statement Amendment executed by the Acquisition Company and
the Agent with respect to item 6 above
8. Undated Stock Power and Stock Certificate of Acquisition Company in the
name of the Borrower
Exhibit A-1