EXHIBIT
10.16
EXECUTION
COPY
CONSENT, WAIVER AND FOURTH
AMENDMENT
This CONSENT, WAIVER AND FOURTH AMENDMENT, dated
as of August 1, 2005 (this “ Consent, Waiver and
Amendment ”), made by BEAR STEARNS CORPORATE LENDING
INC., as administrative agent (in such capacity, the “
Administrative Agent ”) and as collateral agent for
the Revolving Credit Secured Parties (as defined in the Credit
Agreement referred to below) (in such capacity, the “
Revolving Credit Collateral Agent ”), and THE BANK OF
NEW YORK, as collateral agent for the Term Loan Secured Parties (as
defined in the Credit Agreement referred to below) (in such
capacity, the “ Term Loan Collateral Agent ” and
together with the Administrative Agent and the Revolving Credit
Collateral Agent, collectively, the “ Agents ”),
and the Lenders (as defined in the Credit Agreement referred to
below) listed on the signature pages hereof (the “
Lenders ”) in favor of TRICO MARINE ASSETS, INC., a
Delaware corporation (“ Trico Assets ”), TRICO
MARINE OPERATORS, INC., a Louisiana corporation (“ Trico
Operators ”), TRICO MARINE SERVICES, INC., a Delaware
corporation (the “ Company ”), TRICO MARINE
INTERNATIONAL, INC., a Louisiana corporation (“ TMI
”), TRICO MARINE INTERNATIONAL HOLDINGS B.V., a Netherlands
limited company ( besloten vennootschap ) (“
TMIH ”), TRICO SUPPLY AS, a Norway limited company
(“ Trico Supply ”), and the other Subsidiaries
of the Company listed on the signature pages hereof (together with
the Company, Trico Assets, Trico Operators, TMI, TMIH and Trico
Supply, collectively, the “ Credit Parties
”).
RECITALS
A.
The Credit Parties, the Lenders and
the Agents are parties to that certain Credit Agreement (Exit),
dated as of February 21, 2005 (as amended, restated, supplemented
or otherwise modified from time to time, the “ Credit
Agreement ”).
B.
The Credit Parties, the Agents and
the Lenders each desire to amend the Credit Agreement in accordance
with the terms and conditions set forth in this Consent, Waiver and
Amendment.
C.
The Credit Parties have requested
that the Agents and the Lenders grant the consents and waivers as
more fully described herein.
D.
The Agents and the Lenders each
desire to grant such consents and waivers in accordance with the
terms and conditions set forth herein.
In consideration of the mutual conditions and
agreements set forth in the Credit Agreement and this Consent,
Waiver and Amendment, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
DEFINITIONS.
Section 1.01.
Certain Definitions
. All terms used herein that are
defined in the Credit Agreement and not otherwise defined herein
shall have the meanings assigned to them in the Credit
Agreement.
Section 1.02.
Rules of
Interpretation . The
rules of interpretation specified in Section 1.2 of the Credit
Agreement shall be applicable to this Consent, Waiver and
Amendment.
CONSENT AND WAIVER.
Section 2.01.
Non-Collateral Vessel
Sale . The Agents and the
Lenders hereby consent to, and waive the provisions of Section 6.4
of the Credit Agreement restricting, the Disposition by the Company
or any of its Subsidiaries of the vessels identified as
“Non-Collateral Vessels” in Schedule I
(the “ Non-Collateral Vessels ”);
provided that (i) the aggregate amount of proceeds received
in connection with the Disposition of the Non-Collateral Vessels in
the form of cash and Cash Equivalents shall be not less than
$300,000, (ii) the terms and conditions of such Disposition shall
require the purchaser of the Non-Collateral Vessels to agree to not
operate the Non-Collateral Vessels in the offshore supply vessels
industry anywhere in the world, (iii) the Credit Parties shall
comply with the provisions of Section 2.6 of the Credit Agreement
and (iv) the Credit Parties shall promptly provide to the Agents
written confirmation and evidence of the consummation of the
Disposition of the Non-Collateral Vessels.
Section 2.02.
Sale of Certain Assets
Constituting Collateral .
(a) The Agents and the Lenders hereby consent to, and waive the
provisions of Section 6.4 of the Credit Agreement restricting, the
Disposition by the Company of (i) the vessels identified as
“Cold Stacked Vessels” in Schedule II (the
“ Cold Stacked Vessels ”), (ii) the vessel
identified as “Stillwater River”, with a vessel number:
1067867 (the “ SWATH Vessel ”), (iii) the
equipment identified as “EMD Engines” in Schedule
III (the “ EMD Engines ”) and (iv) the
vessels identified as “Purchase Option Vessels” in
Schedule IV (together with the Cold Stacked Vessels, the
SWATH Vessel and the EMD Engines, collectively, the “
Collateral Assets ”); provided that (x) the
aggregate amount of proceeds received in connection with the
Disposition of the Collateral Assets in the form of cash and Cash
Equivalents shall be not less than $6,000,000, (y) the Credit
Parties shall comply with the provisions of Section 2.6 of the
Credit Agreement and (z) the Credit Parties shall promptly provide
to the Agents written confirmation and evidence of the consummation
of the Disposition of the Collateral Assets.
(b) Subject to the consummation of the Disposition
of the Collateral Assets and subject to the conditions set forth in
the proviso in clause (a) above, the Revolving Credit
Collateral Agent and the Term Loan Collateral Agent hereby consent
to the release of Collateral constituting the Collateral
Assets.
AMENDMENTS.
Section 3.01.
Defined Terms (Section
1.1) . Section 1.1 of the
Credit Agreement is hereby amended by adding the following new
definition in appropriate alphabetical order:
““
Cash Collateral Reserve Amount ” means $1,000,000, as
it may be reduced from time to time in accordance with Section
2.21(e) .”
Section 3.02.
Cash Collateralization of L/Cs
(Section 2.21) . Section
2.21 of the Credit Agreement is hereby amended by:
(a) deleting Section 2.21(a) in its entirety, and
inserting in lieu thereof the following:
“(a)
Source of Funds for Cash Collateralization . All Group L/Cs
(other than Existing L/Cs) issued on or after the Initial Funding
Date, and the amount of all increases in the face amount of
Existing L/Cs (as defined below), shall be cash collateralized
exclusively with the proceeds of Revolving Loans, provided
that (i) Group L/Cs issued and outstanding prior to the Initial
Funding Date having an aggregate L/C Exposure not exceeding the
lesser of (x) $7,000,000 and (y) the Aggregate L/C Exposure
immediately prior to the Initial Funding Date (such lesser amount,
as it may be reduced from time to time as provided herein, the
“ Maximum Existing L/C Exposure ”) (such Group
L/Cs, together with any renewals or extensions thereof and any new
Group L/Cs issued in replacement thereof and cash collateralized in
accordance with this Section 2.21 , the “ Existing
L/Cs ”) may be cash collateralized as provided herein
with cash pledged to secure Existing L/Cs immediately prior to the
Initial Funding Date or from the Reserved Cash Collateral Account,
and (ii) in the event that any Specified Group Member requires, in
connection with the conduct of its business in the ordinary course,
(x) the issuance of a Group L/C that does not qualify as an
Existing L/C and at such time no Revolving Loans are outstanding
and the condition precedent to the making of a Revolving Loan set
forth in Section 4.2(c) cannot be satisfied, then such
Specified Group Member may utilize Available Cash of the Specified
Group Members (but only to the extent of the aggregate amount of
such Available Cash in excess of $6,000,000) to cash collateralize
such Group L/C (but not any renewal, extension or replacement of
such Group L/C unless, and only to the extent that, the
requirements of this clause (ii) are again satisfied as to
such renewed, extended or replacement Group L/C at the time of such
renewal, extension or replacement), and any remainder of the
required cash collateral for such Group L/C shall be obtained from
proceeds of Revolving Loans, or (y) an increase in the face amount
of an Existing L/C, then such Specified Group Member may utilize
Available Cash of the Specified Group Members (but only to the
extent of the Cash Collateral Reserve Amount) to cash collateralize
such increase, and any remainder of the required cash collateral
for such increase shall be obtained from proceeds of Revolving
Loans, provided further that the aggregate
face amount of all Group L/Cs cash collateralized with amounts not
constituting the proceeds of Revolving Loans (which shall include
only the face amount of the Group L/Cs issued pursuant to this
clause (ii) and the Existing L/Cs (excluding any increases
in the face amount of Existing L/Cs that are cash collateralized in
accordance with this clause (ii) ) shall not exceed at any
time the lesser of (x) $7,000,000 and (y) the Aggregate L/C
Exposure immediately prior to the Initial Funding Date. All cash
collateral for Group L/Cs (including Existing L/Cs) shall be held
solely in the Nordea/Trico Cash Collateral Account, Account No.
3020913001, at Nordea Bank Finland PLC, New York Branch and/or at
such other accounts as may be consented to by the Majority
Lend
