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EXHIBIT 10.2
THIS FIRST AMENDMENT TO SUBORDINATED 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
Subordinated Credit Agreement (the "Subordinated 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., Dickson 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 Subordinated
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 Subordinated Credit Agreement, but which are not defined in this First
Amendment, shall have the same meanings as defined in the Subordinated
Credit Agreement. Unless otherwise indicated, all sections referenced in
this First Amendment refer to the Subordinated Credit Agreement.
Section 2. Amendments to the Subordinated Credit Agreement.
2.1 Section 1.02 is amended by deleting in its entirety the definition of
"Discretionary Amount."
2.2 Section 1.02 is amended by restating in its entirety the definition of
"Applicable Margin" as follows:
"Applicable Margin" shall mean (i) one and one-fourth of one percent (1.25%) per
annum with respect to Base Rate Loans; and (ii) three and three-fourths of one
percent (3.75%) per annum with respect to Eurodollar Loans.
2.3 Section 1.02 is amended by restating in its entirety the definition of
"Aggregate Maximum Credit Amounts" as follows:
"Aggregate Maximum Credit Amounts" at any time shall equal the sum of the
Maximum Credit Amounts of the Lenders ($20,000,000), as the same may be reduced
pursuant to Section 2.03(c).
2.4 Section 2.03 is restated in its entirety to read as follows:
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(a) The Aggregate Commitments shall at all times be equal to the lesser
of (i) the Aggregate Maximum Credit Amounts after adjustments resulting from
reductions pursuant to Section 2.03(c) hereof or (ii) the Available Amount as
determined from time to time.
(b) The Available Amount as of the Effective Date shall be $20,000,000.
(c) The Borrower shall have the right to terminate or to reduce the
amount of either the Aggregate Maximum Credit Amounts at any time or from time
to time upon not less than three (3) Business Days' prior notice to the Agent
(which shall promptly notify the Lenders) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $5,000,000 or any whole multiple of
$1,000,000 in excess thereof) and shall be irrevocable and effective only upon
receipt by the Agent).
2.5 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.
2.6 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).
2.7 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 approval for a capital expenditure has been obtained as
aforesaid such expenditure shall not be included in the $7,000,000 limit.
2.8 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
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directors then still in office who either were directors at the beginning of
such period or whose election or nomination 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
2.09 Subsection 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.
2.10 Annex I to the Credit Agreement is deleted in its entirety and replaced
with Annex I as set forth in Exhibit A hereto.
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 Subordinated 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 Acquisitions 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 B, 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
Subordinated Credit Agreement.
(e) Payment of the fee required under Section 6 hereof.
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(f) Execution and delivery of the Amended and Restated Note in the form
set forth on Exhibit C.
(g) Execution of the documents contemplated by the Acquisition
Agreement.
(h) 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 Subordinated Credit Agreement.
(a) On or after the date first written above, each reference in the
Subordinated Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import, and each reference to the Subordinated
Credit Agreement in any certificate or other document or instrument
delivered in connection therewith, shall mean and be a reference to the
Subordinated Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Subordinated 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 the restructuring fee
as stated in the First Amendment to the Senior Credit Agreement 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
SUBORDINATED 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
LIST OF MAXIMUM CREDIT AMOUNTS
NAME OF LENDER PERCENTAGE SHARE MAXIMUM CREDIT AMOUNT
-------------- ---------------- ---------------------
Joint Energy Development
Investments II Limited Partnership 100% $20,000,000
Exhibit A-1
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EXHIBIT B
1. Pledge and Security Agreement (Bailment Agreement) executed by Acquisition
Company covering stock
2. First Amendment to Guaranty Agreement dated November 14, 1997
3. Security Agreement (Subordinated) executed by Acquisition Company covering
accounts, etc.
4. Financing Statement executed by Acquisition Company with respect to item 3
above
5. First Supplement to Security Agreement (Stock) executed by the Borrower
pledging the stock of Acquisition Company
Exhibit B-1
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EXHIBIT C
AMENDED AND RESTATED NOTE
$20,000,000.00 August 31, 1998
FOR VALUE RECEIVED, TRANSCOASTAL MARINE SERVICES, INC., a Delaware corporation
(the "Borrower") hereby promises to pay to the order of JOINT ENERGY
DEVELOPMENT INVESTMENTS II LIMITED PARTNERSHIP (the "Lender"), at the
account of JOINT ENERGY DEVELOPMENT INVESTMENTS II LIMITED PARTNERSHIP, a
Delaware limited partnership ("Agent"), at Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Account Number 4065-5378, ABA Number ▇▇▇▇▇▇▇▇▇, the
principal sum of Twenty Million Dollars ($20,000,000.00) (or such lesser
amount as shall equal the aggregate unpaid principal amount of the Loans
made by the Lender to the Borrower under the Subordinated Credit Agreement,
as hereinafter defined), in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal
amounts provided in the Subordinated Credit Agreement, and to pay interest
on the unpaid principal amount of each such Loan, at such office, in like
money and funds, for the period commencing on the date of such Loan until
such Loan shall be paid in full, at the rates per annum and on the dates
provided in the Subordinated Credit Agreement.
The date, amount, Type, interest rate, Interest Period and maturity of each
Loan made by the Lender to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by the Lender on its books and,
prior to any transfer of this Note, may be endorsed by the Lender on the
schedules attached hereto or any continuation thereof or on any separate
record maintained by the Lender.
This Note is the Amended and Restated Promissory Note referred to in the Credit
Agreement dated as of October 28, 1997, as amended by the First Amendment
to Credit Agreement dated as of August 31, 1998, among the Borrower, the
Lenders which are or become party thereto (including Joint Energy
Development Investments Limited Partnership, predecessor of the Lender) and
the Agent thereunder (such Credit Agreement as the same may be amended or
supplemented from time to time, the "Credit Agreement") and is issued in
replacement of that certain Promissory Note dated October 28, 1997,
executed by the Borrower and made payable to Lender (the "Prior Note").
Nothing herein contained shall be construed (a) to be a novation of the
Prior Note or (b) to release, cancel, terminate or otherwise impair the
status or priority of the liens or security for the Prior Note. Further,
the Borrower acknowledges and agrees that this Note shall not be considered
a new contract, and that all rights, titles, powers, liens, security
interests and estates created by or under any security document or other
agreement executed in connection with the Credit Agreement or securing the
Prior Note shall continue without interruption in full force and effect.
Capitalized terms used in this Note have the respective meanings assigned
to them in the Subordinated Credit Agreement.
Exhibit C-1
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This Note is issued pursuant to the Subordinated Credit Agreement and is
entitled to the benefits provided for in the Subordinated Credit Agreement
and the Security Instruments. The Subordinated Credit Agreement provides
for the acceleration of the maturity of this Note upon the occurrence of
certain events, for prepayments of Loans upon the terms and conditions
specified therein and other provisions relevant to this Note.
THIS NOTE (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY
HEREOF) 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.
TRANSCOASTAL MARINE SERVICES, INC.
By:
Name:
Title:
Exhibit C-2