AMENDMENT AGREEMENT NO. 2
to that certain
REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 2 (this "Amendment"), dated as of
September 25, 1996, is by and among TRICO MARINE OPERATORS,
INC. ("Marine Operators"), TRICO MARINE ASSETS, INC.
("Marine Assets") (each of Marine Operators and Marine
Assets is referred to herein as a "Borrower" and
collectively as the "Borrowers"), TRICO MARINE SERVICES,
INC. (the "Parent"), THE FIRST NATIONAL BANK OF BOSTON,
HIBERNIA NATIONAL BANK, FIRST NATIONAL BANK OF COMMERCE and
such other lending institutions as may become parties to the
Credit Agreement referred to below (collectively, the
"Banks") and THE FIRST NATIONAL BANK OF BOSTON as agent for
the Banks (the "Agent").
WHEREAS, the Borrowers, the Parent, the Banks and the
Agent are parties to that certain Revolving Credit
Agreement, dated as of July 26, 1996 (as heretofore and
hereafter amended, restated, modified or supplemented and in
effect from time to time, the "Credit Agreement"), pursuant
to which the Banks, upon certain terms and conditions, have
agreed to make loans to the Borrowers; and
WHEREAS, the Borrowers and the Parent have requested
the Agent and the Banks to provide the Borrowers with a
letter of credit facility under the existing Credit
Agreement; and
WHEREAS, the Borrowers and the Parent have requested
that certain other terms and provisions of the Credit
Agreement be amended;
WHEREAS, the Agent and the Banks, subject to the terms
and provisions hereof, have agreed to amend the Credit
Agreement in order to provide for the foregoing matters; and
WHEREAS, capitalized terms which are used herein
without definition and which are defined in the Credit
Agreement shall have the same meanings herein as in the
Credit Agreement;
NOW THEREFORE, the parties hereto hereby agree as
follows:
1. Amendment to Credit Agreement. Subject to the
satisfaction of the conditions precedent set forth in Section
4 hereof, the Credit Agreement is hereby amended as follows:
1.1. New Definitions. Section 1 of the Credit
Agreement is hereby amended by adding the following new
definitions to Section 1 in the appropriate places in the
alphabetical sequence:
Letter of Credit. See 4.1.1.
Letter of Credit Application. See 4.1.1.
Letter of Credit Fee(s). See 4.6.
Letter of Credit Participation. See 4.1.4.
Maximum Drawing Amount. The maximum aggregate amount
from time to time that the beneficiaries may draw under
outstanding Letters of Credit, as such aggregate amount may
be reduced from time to time pursuant to the terms of the
Letters of Credit.
Reimbursement Obligation. The Borrowers' obligation to
reimburse the Agent and the Banks on account of any drawing
under any Letter of Credit as provided in Section 4.2.
Uniform Customs. With respect to any Letter of Credit,
the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce
Publication No. 500, or any successor version thereof
adopted by the Agent in the ordinary course of its business
as a letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement
Obligation for which the Borrowers do not reimburse the
Agent and the Banks on the date specified in, and in
accordance with, Section 4.2.
1.2. Changes in Certain Definitions. Section 1 of the
Credit Agreement is hereby further amended by amending
certain definitions therein.
(a) The definition of "Commitment" is hereby deleted
in its entirety and replaced with the following:
Commitment. With respect to each Bank, the amount
set forth on Schedule 1.1 attached hereto as the amount
of such Bank's commitment to make Loans to, and to
participate in the issuance, extension and renewal of
Letters of Credit for the account of, the Borrowers, as
the same may be reduced from time to time pursuant to
2.3 hereof; or if such commitment is terminated
pursuant to the provisions hereof, zero.
(b) The definition of "Commitment Percentage" is
hereby deleted in its entirety and replaced with the
following:
Commitment Percentage. With respect to each Bank,
the amount set forth on Schedule 1.1 attached hereto as
such Bank's percentage of the Total Commitment.
(c) The definition of "Funded Debt" is hereby deleted
in its entirety and replaced with the following:
Funded Debt. Without duplication and with respect
to any Person and as at any date of determination, the
aggregate amount of Indebtedness of such Person for
borrowed money (other than short-term trade credit
incurred in the ordinary course of business), the
deferred purchase price of assets (other than short-
term trade credit incurred in the ordinary course of
business), Reimbursement Obligations (contingent or
otherwise) in respect of Letters of Credit, and
Capitalized Leases.
(d) The definition of "Loan Documents" is hereby
deleted in its entirety and replaced with the following:
Loan Documents. Collectively, this
Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the Security
Documents, and the Fee Letter.
(e) The definition of "Obligations" is hereby deleted
in its entirety and replaced with the following:
Obligations. All indebtedness, obligations
and liabilities of the Borrowers to any of the
Banks and the Agent, individually or collectively,
existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or
otherwise, arising or incurred under this
Agreement or the other Loan Documents or in
respect of any of the Loans made or Reimbursement
Obligations incurred or any of the Notes, Letter
of Credit Applications, Letters of Credit or other
instruments at any time evidencing any thereof.
1.3 Commitment to Lend. Section 2.1 of the Credit
Agreement is hereby amended by inserting, in the sixth line
thereof, the words "minus such Bank's Commitment Percentage
of the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations," after the words "Bank's
Commitment," occurring at the end of such line. Section 2.1
is hereby further amended by inserting, in the eighth line
thereof, the words "plus the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations" between the words "(after
giving effect to all amounts requested)" and the words
"shall not at any time exceed".
1.4. Commitment Fees. Section 2.2 of the Credit
Agreement is hereby amended by inserting, in the fifth line
thereof, the words "minus the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations" between the
words "Total Commitment" and the words "exceeds the
outstanding amount".
1.5. Loans to Cover Reimbursement Obligations. The
Credit Agreement shall be amended by inserting the following
new Section 2.6A between the end of existing Section 2.6 and
the beginning of existing Section 2.7:
2.6A. Loans to Cover Reimbursement
Obligations. Notwithstanding the notice and
minimum amount requirements set forth in 2.6.,
the Agent shall, unless otherwise instructed by
the Majority Banks and subject to the satisfaction
of the conditions set forth herein, make Loans to
the Borrowers on the date that any draft presented
under any Letter of Credit is honored by the
Agent, or any date on which the Agent otherwise
makes a payment with respect thereto, in an amount
sufficient to pay in full the obligations of the
Borrowers under Section 4.2 in respect of the honor
of such draft or the making of such payment. The
Borrowers hereby request and authorize the Agent
to make from time to time such Loans by means of
appropriate entries in the books and records of
the Agent and to notify the Banks of the date and
amount of any such Loans. The Borrowers
acknowledge and agree that the making of such
Loans shall, in each case, be subject in all
respects to the provisions of this Agreement as if
they were Loans covered by a Loan Request
including the limitations set forth in Section 2.1
and the requirement that the applicable provisions
of Section 12 be satisfied. Absent manifest error
on the part of the Agent, all actions taken by the
Agent pursuant to the provisions of this Section 2.6A
shall be conclusive and binding on the Borrowers.
Loans made pursuant to this Section 2.6A shall be
Base Rate Loans (subject to conversion pursuant to
Section 2.7 hereof) and shall bear interest at the
rate provided for Loans in Section 2.5 hereof.
Each of the Banks hereby acknowledges and agrees
that a Loan made by the Agent pursuant to this
Section 2.6A shall (i) be subject in all respects
to the provisions of this Agreement (including,
without limitation, Section 2.8 hereof) and (ii)
obligate each Bank to advance to the Agent the
amount of such Bank's Commitment Percentage of such Loan.
1.6. Funding Procedures. Section 2.8.1 of the Credit
Agreement is hereby amended by deleting the first sentence
thereof in its entirety and replacing it with the following:
Not later than 11 o'clock a.m. (Boston time) on
(i) the proposed Drawdown Date of any Loans or
(ii) the date that any draft presented under any
Letter of Credit is honored by the Agent, or on
any date on which the Agent otherwise makes
payment with respect thereto, and in connection
therewith the Agent makes Loans on behalf of the
Banks to the Borrowers pursuant to Section 2.6A hereof,
each of the Banks will make available to the
Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in immediately available
funds, the amount of such Bank's Commitment
Percentage of such Loans made or to be made on
such date.
1.7. Mandatory Prepayments of Loans. Section 3.2 of
the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
3.2. Mandatory Repayments of Loans. If at
any time the sum of the outstanding amount of the
Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total
Commitment, then the Borrowers shall immediately
pay the amount of such excess to the Agent for
the respective accounts of the Lenders for
application: first, to any Unpaid Reimbursement
Obligations; second, to the Loans; and third, to
provide to the Agent cash collateral for
Reimbursement Obligations as contemplated by
Section 4.2(b) and (c). Each payment of any Unpaid
Reimbursement Obligations or prepayment of Loans
shall be allocated among the Banks, in
proportion, as nearly as practicable, to each
Reimbursement Obligation owing to each such Bank
or (as the case may be) the respective unpaid
principal amount of each Bank's Note, with
adjustments to the extent practicable to equalize
any prior payments or repayments not exactly in
proportion.
1.8. The Letters of Credit. The Credit Agreement
shall be amended by deleting Section 4 thereof in its
entirety and inserting the following new Section 4 in lieu
thereof:
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitment.
4.1.1. Commitment to Issue Letters of
Credit. Subject to the terms and conditions
hereof and the execution and delivery by the
Borrowers of a letter of credit application on the
Agent's customary form (a "Letter of Credit
Application"), the Agent on behalf of the Banks
and in reliance upon the agreement of the Banks
set forth in Section 4.1.4 and upon the representations
and warranties of the Borrowers contained herein,
agrees, in its individual capacity, to issue,
extend and renew for the account of the Borrowers
one or more standby letters of credit
(individually, a "Letter of Credit"), in such form
as may be requested from time to time by the
Borrowers and agreed to by the Agent; provided,
however, that, after giving effect to such
request, (a) the sum of the aggregate Maximum
Drawing Amount and all Unpaid Reimbursement
Obligations shall not exceed Thirty-One Million
Five Hundred Thousand Dollars ($31,500,000) at any
one time and (b) the sum of (i) the Maximum
Drawing Amount of all Letters of Credit, (ii) all
Unpaid Reimbursement Obligations, and (iii) the
amount of all Loans outstanding shall not exceed
the Total Commitment.
4.1.2. Letter of Credit Applications.
Each Letter of Credit Application shall be
completed to the satisfaction of the Agent. In
the event that any provision of any Letter of
Credit Application shall be inconsistent with any
provision of this Agreement, then the provisions
of this Agreement shall, to the extent of any such
inconsistency, govern.
4.1.3. Terms of Letters of Credit.
Each Letter of Credit issued, extended or renewed
hereunder shall, among other things, (a) provide
for the payment of sight drafts for honor
thereunder when presented in accordance with the
terms thereof and when accompanied by the
documents described therein, (b) have an original
expiry date no later than the date which is three
hundred sixty-five (365) days from the date of
issuance and (c) have a final expiry date no later
than the date which is fourteen (14) Business Days
prior to the Maturity Date. Each Letter of Credit
so issued, extended or renewed shall be subject to
the Uniform Customs.
4.1.4. Reimbursement Obligations of
Banks Each Bank severally agrees that it shall be
absolutely liable, without regard to the
occurrence of any Default or Event of Default or
any other condition precedent whatsoever, to the
extent of such Bank's Commitment Percentage, to
reimburse the Agent on demand for the amount of
each draft paid by the Agent under each Letter of
Credit to the extent that such amount is not
reimbursed by the Borrowers pursuant to Section 4.2
(such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank).
4.1.5. Participations of Banks. Each
such payment made by a Bank shall be treated as
the purchase by such Bank of a participating
interest in the Borrower's Reimbursement
Obligation under Section 4.2 in an amount equal
to such payment. Each Bank shall share in accordance
with its participating interest in any interest which
accrues pursuant to Section 4.2.
4.2. Reimbursement Obligation of the
Borrowers. In order to induce the Agent to issue,
extend and renew each Letter of Credit and the
Banks to participate therein, the Borrowers hereby
agree to reimburse or pay to the Agent, for the
account of the Agent or (as the case may be) the
Banks, with respect to each Letter of Credit
issued, extended or renewed by the Agent
hereunder,
(a) on each date that any draft
presented under such Letter of Credit is honored
by the Agent, or the Agent otherwise makes a
payment under or pursuant to such Letter of
Credit, (i) the amount paid by the Agent under or
pursuant to such Letter of Credit (it being
understood that such payment to the Agent may,
subject to the satisfaction of the conditions set
forth therein, be made from the proceeds of a Loan
made to the Borrowers pursuant to 2.6A), and (ii)
the amount of any customary taxes, fees, charges
or other reasonable costs and expenses whatsoever
incurred by the Agent or any Bank in connection
with any payment made by the Agent or any Bank
under, or pursuant to, such Letter of Credit (to
the extent the reimbursement and payment of such
taxes, fees, charges, costs, or expenses are not
otherwise provided for elsewhere in this Agreement
and excluding therefrom any amount payable to the
Agent by a Bank pursuant to Section 4.3),
(b) upon the reduction (but not
termination) of the Total Commitment to an amount
less than the Maximum Drawing Amount, an amount
equal to such difference, which amount shall be
held by the Agent for the benefit of the Banks and
the Agent as cash collateral for the Obligations,
and
(c) upon the termination of the Total
Commitment or the acceleration of the
Reimbursement Obligations with respect to all
Letters of Credit in accordance with Section 13,
an amount equal to the then Maximum Drawing Amount
of all Letters of Credit, which amount shall be held
by the Agent for the benefit of the Lenders and
the Agent as cash collateral for the Obligations.
Each such payment shall be made to the Agent at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
in immediately available funds or (in the case of
clause (a)) from the direct application of the
proceeds of a Loan made pursuant to 2.6A hereof.
Interest on any and all amounts remaining unpaid
by the Borrowers under this 4.2 at any time from
the date such amounts become due and payable
(whether as stated in this 4.2, by acceleration
or otherwise) until payment in full (whether
before or after judgment) shall be payable to the
Agent on demand at the rate specified in Section 5.8
for overdue principal of the Loans.
4.3. Letter of Credit Payments. If any
draft shall be presented or other demand for
payment shall be made under any Letter of Credit,
the Agent shall notify the Borrowers of the date
and amount of the draft presented or demand for
payment and of the date and time when it expects
to pay such draft or honor such demand for
payment. If the Borrowers fail to reimburse the
Agent as provided in 4.2 on or before the date
that such draft is paid or other payment is made
by the Agent, the Agent may at any time thereafter
notify the Banks of the amount of any such Unpaid
Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following
the receipt of such notice, each Bank shall make
available to the Agent, at its Head Office, in
immediately available funds, such Bank's
Commitment Percentage of such Unpaid Reimbursement
Obligation, together with an amount equal to the
product of (a) the average, computed for the
period referred to in clause (c) below, of the
weighted average interest rate paid by the Agent
for federal funds acquired by the Agent during
each day included in such period, times (b) the
amount equal to such Bank's Commitment Percentage
of such Unpaid Reimbursement Obligation, times (c)
a fraction, the numerator of which is the number
of days that elapse from and including the date
the Agent paid the draft presented for honor or
otherwise made payment to the date on which such
Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation shall become immediately
available to the Agent, and the denominator of
which is 360. The responsibility of the Agent to
the Borrowers and the Banks shall be only to
determine that the documents (including each
draft) delivered under each Letter of Credit in
connection with such presentment shall be in
conformity in all material respects with such
Letter of Credit.
4.4. Obligations Absolute. The Borrowers'
obligations under this 4 shall be absolute and
unconditional under any and all circumstances and
irrespective of the occurrence of any Default or
Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense
to payment which the Borrowers may have or have
had against the Agent, any Bank or any beneficiary
of a Letter of Credit. The Borrowers further
agree with the Agent and the Banks that the Agent
and the Banks shall not be responsible for, and
the Borrowers' Reimbursement Obligations under
4.2 shall not be affected by, among other things,
the validity or genuineness of documents or of any
endorsements thereon, even if such documents
should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute
between or among the Borrowers, the beneficiary of
any Letter of Credit or any financing institution
or other party to which any Letter of Credit may
be transferred or any claims or defenses
whatsoever of the Borrowers against the
beneficiary of any Letter of Credit or any such
transferee. The Agent and the Banks shall not be
liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in
connection with any Letter of Credit. The
Borrowers agree that any action taken or omitted
by the Agent or any Bank under or in connection
with each Letter of Credit and the related drafts
and documents, if done in good faith, shall be
binding upon the Borrowers and shall not result in
any liability on the part of the Agent or any Bank
to the Borrowers; provided that the Agent or such
Bank shall not be grossly negligent in taking or
omitting to take any such action.
4.5. Reliance by Issuer. To the extent not
inconsistent with 4.4, the Agent shall be
entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft,
writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or
other document believed by it to be genuine and
correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and
statements of legal counsel, independent
accountants and other experts selected by the
Agent. The Agent shall be fully justified in
failing or refusing to take any action under this
Agreement unless it shall first have received such
advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the
Banks against any and all liability and expense
which may be incurred by it by reason of taking or
continuing to take any such action. The Agent
shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement
in accordance with a request of the Majority
Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding
upon the Banks and all future holders of the Notes
or of a Letter of Credit Participation.
4.6. Letter of Credit Fee. The Borrowers
shall pay to the Agent and the Lenders in respect
of each Letter of Credit the following fees
(collectively, the "Letter of Credit Fees"): (a)
on the date of issuance and on each anniversary of
issuance of each Letter of Credit, a fee payable
to the Agent, for the accounts of the Banks in
accordance with their respective Commitment
Percentages, annually in advance, equal to one and
one-half percent (1 1/2%) per annum of the face
amount of such Letter of Credit provided that, if
such Letter of Credit has an expiry date that is
less than one year from the date of the issuance
of such Letter of Credit, such fee shall be
multiplied by a fraction, the numerator of which
is the number of days from the date of issuance to
the expiry date of such Letter of Credit and the
denominator of which is 360 and (b) on the date of
issuance, and at the time of each extension or
renewal of each Letter of Credit, a fee payable to
the Agent for its own account, equal to one-eighth
percent (1/8%) of the face amount of such Letter
of Credit plus the Agent's customary issuance fee,
renewal fee or extension fee, as the case may be.
1.9. Payments to Agent. Section 5.3.1 of the Credit
Agreement is hereby amended by inserting, in the first line
thereof, the words "the Reimbursement Obligations, the
Letter of Credit Fees," between the words "principal,
interest" and the words "the Commitment Fee".
1.10. Computations. Section 5.4 of the Credit
Agreement is hereby amended by inserting, in the first line
thereof, the words ", Letter of Credit Fees" between the
words "the Loans" and the words "and of the Commitment
Fees".
1.11. Additional Costs, etc.
1.11.1. Section 5.5(a) of the Credit Agreement
is hereby amended by inserting in the third line thereof the
words "the Letters of Credit," between the words "Loan
Documents," and the words "such Bank's Commitment".
1.11.2. Section 5.5(c) of the Credit Agreement
is hereby amended by inserting in the fifth line thereof the
words "or letters of credit issued by," between the words
"or loans by," and the words "or commitments of an office".
1.11.3. Section 5.5(d) of the Credit Agreement
is hereby amended by inserting in the second line thereof
the words "any Letters of Credit," between the words "the
other Loan Documents," and the words "the Loans." Section
5.5(d) is hereby further amended by inserting, in the third
line thereof the words ", Letters of Credit" between the
words "any class of loans" and "or commitments".
1.11.4. Section 5.5(d)(i) of the Credit
Agreement is hereby amended by inserting in the second line
thereof the words ", any Letters of Credit" between the
words "any of the Loans" and "or such Bank's Commitment".
1.11.5. Section 5.5(d)(ii) of the Credit
Agreement is hereby amended by inserting in the third line
thereof the words ", any Letter of Credit" between the words
"such Bank's Commitment" and the words "or any of the
Loans".
1.11.6. Section 5.5(d)(iii) is hereby amended by
inserting in the second line thereof the words "or
Reimbursement Obligation" between the words "any interest"
and the words "or other sum payable". Section 5.5(iii) is
hereby further amended by inserting in the third line
thereof the words "or Reimbursement Obligation" between the
words "foregone interest" and the words "or other sum".
1.11.7. Section 5.5 is hereby further amended by
inserting in the last line of the last paragraph thereof the
words "or Reimbursement Obligations" between the words "or
foregone interest" and the words "or other sum."
1.12. Overdue Amounts. Section 5.8 of the Credit
Agreement is hereby amended by inserting, in the second line
thereof, the words ", Unpaid Reimbursement Obligations"
between the words "the Loans" and the words "and all other
overdue amounts payable hereunder ".
1.13. Regulations U and X. Section 7.17 of the Credit
Agreement is hereby amended by inserting, in the third line
thereof, the words "The Borrowers will obtain Letters of
Credit for general corporate purposes." between the words
"general corporate purposes." and the words "No portion of
any Loan". Section 7.17 is further amended by inserting, in
the third line thereof, the words ", and no portion of any
Letter of Credit is to be obtained," between the words "is
to be used" and the words "for the purpose of purchasing".
1.14. Affirmative Covenants. The introductory text of
Section 8 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
8. AFFIRMATIVE COVENANTS. The Parent and
each of the Borrowers jointly and severally
covenant and agree that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit
or Note is outstanding or any Bank has any
obligation to make any Loans or the Agent has any
obligation to issue, extend or renew any Letters
of Credit hereunder:
1.15. Punctual Payment. Section 8.1 of the Credit
Agreement is hereby amended by inserting, in the second line
thereof the words, "all Reimbursement Obligations, the
Letter of Credit Fees" between the words "interest on the
Loans" and the words "and the Commitment Fee".
1.16. Use of Proceeds. Section 8.12 of the Credit
Agreement is hereby amended by inserting after the final
period thereof the words "The Borrowers will obtain Letters
of Credit for general corporate purposes."
1.17. Certain Negative Covenants. The introductory
text of Section 9 of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
9. CERTAIN NEGATIVE COVENANTS. The Parent
and each of the Borrowers jointly and severally
covenant and agree that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit
or Note is outstanding or any Bank has any
obligation to make any Loans or the Agent has any
obligation to issue, extend or renew any Letters
of Credit hereunder:
1.18. Collateral Value Ratio. Section 10.4 of the
Credit Agreement is hereby amended by deleting the language
"Outstanding Loans" occurring in the fourth line thereof and
replacing it with the following language: "sum of (i) the
Outstanding Loans, plus (ii) the Maximum Drawing Amount,
plus (iii) all Unpaid Reimbursement Obligations".
1.19. Conditions to All Borrowings.
1.19.1. The introductory text of Section 12 of
the Credit Agreement is hereby amended by inserting, in the
first line thereof, the words "and of the Agent to issue,
extend or renew any Letters of Credit," between the words
"make any Loan," and "whether on or after the Closing Date".
1.19.2. Section 12.1 of the Credit Agreement is
hereby amended by inserting, in the fifth line thereof, the
words "or the issuance, extension or renewal of such Letter
of Credit" between the words "making of such Loan" and the
words ", with the same effect as if made".
1.19.3. Section 12.2 of the Credit Agreement is
hereby amended by adding after the final period thereof the
words "It shall not be unlawful for the Agent, with respect
to any request relating to the issuance, extension or
renewal of a Letter of Credit, to issue, extend, or renew,
or for any Bank to participate in the issuance, extension or
renewal of, such Letter of Credit."
1.20. Events of Default and Acceleration.
1.20.1. Section 13.1(a) of the Credit Agreement
is hereby amended by inserting, in the first line thereof,
the words ", or any Reimbursement Obligation" between the
words "the Loans" and the words "when the same shall become
due".
1.20.2. Section 13.1(b) of the Credit Agreement
is hereby amended by inserting, in the second line thereof,
the words "any Letter of Credit Fee," between the words "the
Commitment Fee," and the words "the Agent's fee".
1.20.3. The final paragraph of Section 13.1 of
the Credit Agreement (after Section 13.1(p)) is hereby
amended by inserting, in the third line thereof, the words
"and all Reimbursement Obligations" between the words "the
other Loan Documents" and the words "to be, and they shall
thereupon forthwith become".
1.21. Termination of Commitments. Section 13.2 of
the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
13.2. Termination of Commitments. If any one or
more of the Events of Default specified in 13.1(g),
13.1(h) or 13.1(j) shall occur, any unused portion of
the credit hereunder shall forthwith terminate and each
of the Banks shall be relieved of all further
obligations to make Loans to the Borrowers and the
Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other
Event of Default shall have occurred and be continuing,
or if on any Drawdown Date or other date for issuing,
extending or renewing any Letter of Credit the
conditions precedent to the making of the Loans to be
made on such Drawdown Date or (as the case may be) to
issuing, extending or renewing such Letter of Credit on
such other date are not satisfied, the Agent may and
upon the request of the Majority Banks, shall, by
notice to the Borrowers, terminate the unused portion
of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall
terminate immediately and each of the Banks shall be
relieved of all further obligations to make Loans and
the Agent shall be relieved of all further obligations
to issue, extend or renew Letters of Credit. If any
such notice is given to the Borrowers the Agent will
forthwith furnish a copy thereof to each of the Banks.
No termination of the credit hereunder shall relieve
either of the Borrowers of any of the Obligations or
any of their existing obligations to any of the Banks
arising under other agreements or instruments.
1.22. Remedies. Section 13.3 of the Credit Agreement
is hereby amended by inserting, in the third line thereof,
the words "or the Reimbursement Obligations" between the
words "with respect to the Loans" and the words ", may
proceed to protect". Section 13.3 is further amended hereby
by inserting, in the eleventh line thereof, the words "or
purchaser of any Letter of Credit Participation" between the
words "holder of any note" and the words "is intended to be
exclusive".
1.23. Setoff. Section 14 of the Credit Agreement is
hereby deleted in its entirety and replaced with the
following:
14. SETOFF. Regardless of the adequacy of
any collateral, during the continuance of any
Event of Default, any deposits or other sums
credited by or due from any of the Banks to either
of the Borrowers and any securities or other
property of either of the Borrowers in the
possession of such Bank may be applied to or set
off by such Bank against the payment of
Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due
or to become due, now existing or hereafter
arising, of the Borrowers to such Bank. Each of
the Banks agrees with each other Bank that (a) if
an amount to be set off is to be applied to
Indebtedness of either of the Borrowers to such
Bank, other than Indebtedness evidenced by the
Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, such
amount shall be applied ratably to such other
Indebtedness and to the Indebtedness evidenced by
all such Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, and
(b) if such Bank shall receive from either of the
Borrowers, whether by voluntary payment, exercise
of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the
Notes held by, or constituting Reimbursement
Obligations owed to, such Bank by proceedings
against such Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the
payment of the Note or Notes held by, or
Reimbursement Obligations owed to, such Bank any
amount in excess of its ratable portion of the
payments received by all of the Banks with respect
to the Notes held by, and Reimbursement
Obligations owed to, all of the Banks, such Bank
will make such disposition and arrangements with
the other Banks with respect to such excess,
either by way of distribution, pro tanto
assignment of claims, subrogation or otherwise as
shall result in each Bank receiving in respect of
the Notes held by it or Reimbursement Obligations
owed it, its proportionate payment as contemplated
by this Agreement; provided that if all or any
part of such excess payment is thereafter
recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount
restored to the extent of such recovery, but
without interest.
1.24. No Representations. Section 15.4 of the Credit
Agreement is hereby amended by inserting, in the second line
thereof, the words "the Letters of Credit," between the
words "the Notes," and the words "any of the other Loan
Documents".
1.25. Delinquent Banks. Section 15.5.3 of the Credit
Agreement is hereby deleted in its entirety and is replaced
with the following:
15.5.3. Delinquent Banks. Notwithstanding
anything to the contrary contained in this
Agreement or any of the other Loan Documents, any
Bank that fails (a) to make available to the Agent
its pro rata share of any Loan or to purchase any
Letter of Credit Participation or (b) to comply
with the provisions of 14 with respect to making
dispositions and arrangements with the other
Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due
and payable to all of the Banks, in each case as,
when and to the full extent required by the
provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be
deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall
be deemed to have assigned any and all payments
due to it from the Borrowers, whether on account
of outstanding Loans, Unpaid Reimbursement
Obligations, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to,
and reduction of, their respective pro rata shares
of all outstanding Loans and Unpaid Reimbursement
Obligations. The Delinquent Bank hereby
authorizes the Agent to distribute such payments
to the nondelinquent Banks in proportion to their
respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. A
Delinquent Bank shall be deemed to have satisfied
in full a delinquency when and if, as a result of
application of the assigned payments to all
outstanding Loans and Unpaid Reimbursement
Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations have
returned to those in effect immediately prior to
such delinquency and without giving effect to the
nonpayment causing such delinquency.
1.26. Holders of Notes. Section 15.6 of the Credit
Agreement is hereby amended by inserting, in the first line
thereof, the words "or the purchaser of any Letter of Credit
Participation" between the words "payee of any Note" and the
words "as the absolute owner thereof".
1.27. Agent as Bank. Section 15.8 of the Credit
Agreement is hereby amended by inserting, in the third line
thereof, the words "and as the purchaser of any Letter of
Credit Participations" between the words "any of the Notes"
and the words ", as it would have".
1.28. Indemnification. Section 17 of the Credit
Agreement is hereby amended by inserting, in the seventh
line thereof, the words "or Letters of Credit" between the
words "proceeds of any of the Loans" and the words ", (b)
any actual or alleged infringement".
1.29. Survival of Covenants, etc. Section 18 of the
Credit Agreement is hereby amended by inserting, in the
sixth line thereof, the words "and the issuance, extension
or renewal of any Letters of Credit" between the words
"making by the Banks of the Loans" and the words ", as
herein contemplated". Section 18 is hereby further amended
by inserting, in the seventh line thereof, the words "any
Letter of Credit or" between the words "so long as" and the
words "any amount due under this Agreement". Section 18 is
hereby further amended by inserting, in the eighth line
thereof, the words "or the Agent has any obligation to
issue, extend or renew any Letter of Credit" between the
words "obligation to make any Loans" and the words ", and
for such further time".
1.30. Assignment; Participations.
1.30.1. Section 19.1 of the Credit Agreement is
hereby amended by inserting, in the fourth line thereof, the
words "and its participating interest in the risk relating
to any Letters of Credit" between the words "and the Note
held by it" and the text "); provided".
1.30.2. Section 19.2 of the Credit Agreement is
hereby amended by deleting the word "and" between clause (g)
and clause (h) thereof. Section 19.2 of the Credit
Agreement is hereby further amended by inserting,
immediately before the period after clause (h) thereof, the
words "; and (i) such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to such
assignee with respect to its pro rata share of Letter of
Credit Fees in respect of outstanding Letters of Credit".
1.30.3. Section 19.3 of the Credit Agreement is
hereby amended by inserting, in the fourth line thereof, the
words "and Letter of Credit Participations purchased by,"
between the words "amount of the Loans owing to" and the
words "the Banks from time to time".
1.30.4. Section 19.5 of the Credit Agreement is
hereby amended by inserting, in the tenth line thereof, the
words "or Letter of Credit Fees" between the words "any
Commitment Fee" and the words "to which such participant is
entitled".
1.30.5. Section 19.7 is hereby amended by
inserting, in the eighth line thereof, the words "or
Reimbursement Obligations" between the words "any of the
Loans" and the words "to a participant, and".
1.31. Notices, etc. Section 20 of the Credit
Agreement is hereby amended by inserting, in the third line
thereof, the words "or any Letter of Credit Applications"
between the words "the Notes" and the words "shall be in
writing".
1.32. Consents, Amendments, Waivers, etc. Section 26
of the Credit Agreement is hereby amended by inserting, in
the thirteenth line thereof, the words "or Letter of Credit
Fees" between the words "the amount of Commitment Fee" and
the words "hereunder may not be changed". Section 26 is
hereby further amended by inserting, in the eighteenth line
thereof the words "or any Letter of Credit Fees payable for
the Agent's account" between the words "of the Agent's fee"
and the words "and 15 may not be amended".
1.33. Amendments to Form of Assignment and Acceptance.
Exhibit D to the Credit Agreement is hereby amended by
inserting, in the third line of Section 2 thereof, the words
"and its participating interest in the risk relating to any
outstanding Letters of Credit" between the words "its
Commitment Percentage" and the words "(without giving effect
to". Exhibit D is hereby further amended by inserting, in
the fifth line of Section 2 thereof, the words "and its
participating interest in Unpaid Reimbursement Obligations"
between the words "its Loans" and the word "(unreduced".
Exhibit D is hereby further amended by deleting, from
Section 3 thereof, the word "and" from between the end of
clause (e) and the beginning of clause (f). Exhibit D is
hereby further amended by inserting, immediately before the
period after clause (f) thereof, the words "; and (g)
acknowledges that it has made arrangements with the Assignor
satisfactory to it with respect to its pro rata share of
Letter of Credit Fees in respect of outstanding Letters of
Credit".
2. Representations and Warranties. The Parent and
each of the Borrowers jointly and severally represent and
warrant to the Banks and the Agent as follows:
(a) Representations and Warranties in Credit
Agreement. The representations and warranties of the Parent
and the Borrowers contained in the Credit Agreement, each as
amended by this Amendment, (a) were true and correct in all
material respects when made, and (b) except to the extent
such representations and warranties by their terms are made
solely as of a prior date, continue to be true and correct
in all material respects on the date hereof.
(b) Authority, Etc. The execution and delivery
by the Borrowers and the Parent of this Amendment and the
performance by the Borrowers and the Parent of all of their
agreements and obligations under this Amendment (i) are
within the corporate authority of each of the Borrowers and
the Parent, (ii) have been duly authorized by all necessary
corporate proceedings by each of the Borrowers and the
Parent, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or
regulation to which either of the Borrowers or the Parent is
subject or any judgment, order, writ, injunction, license or
permit applicable to either of the Borrowers or the Parent,
and (iv) do not conflict with any provision of the corporate
charter or by-laws of, or any agreement or other instrument
binding upon, either of the Borrowers or the Parent.
(c) Enforceability of Obligations. This
Amendment, and the Credit Agreement as amended hereby,
constitute the legal, valid and binding obligations of each
of the Borrowers and the Parent enforceable against such
Person in accordance with their respective terms.
Immediately prior to and after giving effect to this
Amendment, no Default or Event of Default exists under the
Credit Agreement or any other Loan Document.
3. Affirmation of Borrowers, the Parent and HOS. (a)
Each of the Borrowers hereby affirms its joint and several,
absolute and unconditional promise to pay to each Bank and
the Agent the Loans, the Reimbursement Obligations and all
other amounts due under the Notes, the Letters of Credit and
the Credit Agreement as amended hereby, at the times and in
the amounts provided for therein. Each of the Borrowers
confirms and agrees that (i) the obligations of the
Borrowers to the Banks and the Agent under the Credit
Agreement as amended hereby are secured by and entitled to
the benefits of the Security Documents and (ii) all
references to the term "Credit Agreement" in the Security
Documents shall hereafter refer to the Credit Agreement as
amended hereby.
(b) The Parent, as Guarantor under (and as
defined in) the Parent Guaranty hereby acknowledges that it
has read and is aware of the provisions of this Amendment.
The Parent hereby reaffirms its absolute and unconditional
guaranty of the Borrowers' payment and performance of their
obligations to the Banks and the Agent under the Credit
Agreement as amended hereby. The Parent hereby confirms and
agrees that all references in the Parent Guaranty to the
term "Credit Agreement" shall hereafter refer to the Credit
Agreement as amended hereby.
(c) HOS, as Guarantor under (and as defined in)
the HOS Guaranty hereby acknowledges that it has read and is
aware of the provisions of this Amendment. HOS hereby
reaffirms is absolute and unconditional guaranty of the
Borrowers' payment and performance of their obligations to
the Banks and the Agent under the Credit Agreement as
amended hereby. HOS confirms and agrees that the
obligations of HOS to the Banks and the Agent under the HOS
Guaranty, as affirmed hereby, are secured by and entitled to
the benefits of the HOS Security Agreement and the HOS
Vessel Mortgage. HOS hereby confirms and agrees that all
references in the HOS Guaranty and the HOS Security
Agreement to the term "Credit Agreement" shall hereafter
refer to the Credit Agreement as amended hereby.
4. Conditions to Effectiveness. This Amendment shall
be effective as of September 25, 1996, upon receipt by the
Agent and the Banks of the following, in form and substance
satisfactory to the Agent and the Banks:
(a) this Amendment duly executed and delivered by
each of the Borrowers, the Parent, HOS, the Banks and the
Agent;
(b) a legal opinion, addressed to the Banks and
the Agent, dated the date hereof, in form and substance
satisfactory to the Banks and the Agent, from Jones, Walker,
Waechter, Poitevent, Carrerre & ▇▇▇▇▇▇▇, L.L.P., counsel to
the Parent, the Borrowers, and HOS;
(c) evidence satisfactory to the Banks and the
Agent that all requisite corporate approval of the
transactions contemplated hereby have been obtained,
including without limitation delivery of copies, certified
by the secretary of each of the Borrowers, HOS and the
Parent, of votes of such Person's respective board of
directors authorizing the transactions contemplated hereby,
and
(d) any other document or instrument the Agent
and the Banks may reasonably request.
5. Covenants of Borrowers, the Parent and HOS. Each
of the Borrowers, the Parent and HOS hereby covenants and
agrees that they shall deliver (or cause to be delivered) to
the Agent and the Banks (i) on or before October 25, 1996,
amendments to each of the Vessel Mortgages (duly executed
and delivered by Marine Assets or HOS, as appropriate, and
the Agent) to reflect the Amendment to the Credit Agreement
contemplated herein, in each case in form and substance
satisfactory to the Agent and the Banks, and (ii) on or
before the earlier to occur of (x) ten Business Days after
the execution and delivery of the amendments referred to in
clause (i) and (y) November 8, 1996, evidence of the filing
and recordation (in the form of a Certificate of Ownership
and Encumbrance acceptable to the Agent and the Banks) of
such amendments with the U.S. Coast Guard (in the case of
the U.S. Vessel Mortgage and the HOS Vessel Mortgage) or the
Office of the Deputy Commissioner of Maritime Affairs for
The Republic of Vanuatu (in the case of the Vanuatu Vessel
Mortgage). Each of the Borrowers, the Parent and HOS hereby
acknowledges and agrees that the covenants contained in this
5 shall be deemed to be a part of the Credit Agreement and
that the failure to fulfill any of such covenants shall
constitute a Default under 13.1(c) of the Credit Agreement
and shall entitle the Agent and the Banks to the remedies
provided therefor in the Credit Agreement.
6. Miscellaneous Provisions. (a) Except as
otherwise expressly provided by this Amendment, all of the
terms, conditions and provisions of the Credit Agreement
shall remain the same. It is declared and agreed by each of
the parties hereto that the Credit Agreement, as amended
hereby, shall continue in full force and effect, and that
this Amendment and the Credit Agreement shall be read and
construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN
AGREEMENT UNDER SEAL AND SHALL BE CONSTRUED ACCORDING TO AND
GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of
counterparts, but all such counterparts shall together
constitute but one instrument. In making proof of this
Amendment it shall not be necessary to produce or account
for more than one counterpart signed by each party hereto by
and against which enforcement hereof is sought.
(d) Headings or captions used in this Amendment are
for convenience of reference only and shall not define or
limit the provisions hereof.
(e) The Borrowers hereby jointly and severally agree
to pay to the Agent, on demand by the Agent, all reasonable
out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this
Amendment (including reasonable legal fees).
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment as an agreement under seal as of the date
first written above.
TRICO MARINE OPERATORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice-President
TRICO MARINE ASSETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
TRICO MARINE SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HOS MARINE PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
HIBERNIA NATIONAL BANK
By: ▇▇▇▇▇ ▇▇▇▇
___________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
FIRST NATIONAL BANK
OF COMMERCE
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
___________________________
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title Vice President