EXHIBIT 10.4
CONSENT, WAIVER AND THIRD
AMENDMENT
This CONSENT, WAIVER AND THIRD AMENDMENT, dated
as of May 9, 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.
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 Trico Shipping AS
(“ Shipping AS ”) of the following vessels (the
“ Vessel Sale ”): (i) Motor Vessel Northern
Seeker (Registration Number DNV ID 10413 / IMO 7420546) and (ii)
Motor Vessel Northern Sea (Registration Number 377305 / IMO
7615878); provided that the Credit Parties shall, and shall
cause Shipping AS to, immediately (x) apply 100% of the Net Cash
Proceeds of the Vessel Sale to prepay the Norwegian Term Loan
and/or loans outstanding under the Norwegian Revolving Facility and
(y) permanently reduce the commitments available to Shipping AS
under the Norwegian Term Loan (if applicable) and/or Norwegian
Revolving Facility by the respective principal amount of loans
prepaid thereunder (collectively, the “ Norway Prepayment
and Commitment Reduction ”) and shall promptly provide to
the Agents written confirmation and evidence of the date and
consummation of each Vessel Sale and of the date and effectiveness
of each Norway Prepayment and Commitment Reduction, satisfactory in
form and substance to the Agents.
Section 2.02.
Norway Prepayment and Commitment
Reduction . Subject to
compliance with Section 2.01 above regarding application of
Net Cash Proceeds of the Vessel Sale, the Agents and the Lenders
hereby (a) waive the provisions of Section 2.6 of the Credit
Agreement requiring that the proceeds of the Vessel Sale be used to
prepay the Loans and (b) consent to the transactions contemplated
by the Norway Prepayment and Commitment Reduction.
Section 2.03.
Waiver . The Agents and the Lenders hereby waive any
Default or Event of Default that may have occurred solely as the
result of (i) the consummation of the Vessel Sale and/or any
Norway Prepayment and Commitment Reduction, (ii) the failure
by any Credit Party to have complied with any requirement under the
Credit Agreement to provide to the Lenders or any Agent any notice
in respect of, or obtain any consent or approval other than that
set forth herein with respect to, the Vessel Sale and/or the Norway
Prepayment and Commitment Reduction, or (iii) any representation,
warranty or other statement by a Credit Party made solely in
connection with a Loan made following the consummation of the
Vessel Sale and/or the Norway Prepayment and Commitment Reduction
and prior to the date hereof not being true (both before and after
giving effect thereto and to the application of the proceeds
thereof), but only to the extent that such statement was untrue
solely as a result of the existence of any Default or Event of
Default that may have occurred solely as a result of the Vessel
Sale and/or the Norway Prepayment and Commitment
Reduction.
AMENDMENTS.
Section 3.01.
Defined Terms (Section
1.1) . Section 1.1 of the
Credit Agreement is hereby amended and restated by:
(a) deleting the definition of the term
“Applicable Prepayment Premium” and substituting in
lieu thereof the following definition:
““
Applicable Premium ” means, without duplication, with
respect to any voluntary or mandatory repayment or prepayment
(including upon any acceleration) of Term Loans (or applicable
portion thereof) to which it applies (which shall include in any
event acceleration of the Term Loans pursuant to Section 7
), a premium on the principal amount of Term Loans (or applicable
portion thereof) repaid, prepaid or accelerated equal to the
percentage of the principal amount of Term Loans (or applicable
portion thereof) so repaid, prepaid or accelerated set forth in the
chart below by reference to the period in which such repayment or
prepayment is made (in the case of voluntary repayments or
prepayments) or required to be made (in the case of mandatory
repayments or prepayments, or any acceleration, to which such
premium applies) pursuant to this Agreement:
|
Relevant Period
|
Premium as a
percentage of the principal amount
of
Term Loans amount so prepaid, repaid
or accelerated
|
|
On or prior to
the second anniversary of the Initial Funding Date
|
3%
|
|
On or prior to
the third anniversary of the Initial Funding Date, but after the
second anniversary of the Initial Funding Date
|
2%
|
|
On or prior to
the fourth anniversary of the Initial Funding Date, but after the
third anniversary of the Initial Funding Date
|
1%
|
(b) deleting the definition of the term
“Credit Documents” and substituting in lieu thereof the
following definition:
““
Credit Documents ” means, collectively, this
Agreement, the Ancillary Collateral Documents, the Fee Letter, the
Notes, the Intercreditor Agreement, the Trico Supply Intercreditor
Agreement, the Waiver and Agreement and any other document that
contains a consent, waiver, amendment, supplement or other
modification to any document described herein.”
Section 3.02.
Global Amendment
. The Credit Agreement is hereby
amended by deleting each occurrence of the term “Applicable
Prepayment Premium” and substituting in lieu thereof, in each
such occurrence, the term “Applicable
Premium”.
Section 3.03.
Repayment of Loans (Section
2.3) . Section 2.3(c) of
the Credit Agreement is hereby amended by adding the following
sentence at the end of such Section:
“The
Applicable Premium shall be due and payable upon acceleration of
the Term Loans pursuant to Section 7 .”
Section 3.04.
Mandatory Prepayments and
Commitment Reductions (Section 2.6) . Section 2.6(a)(i) of the Credit Agreement is
hereby amended by adding the following sentence at the end of such
Section:
“Notwithstanding any provision to the
contrary elsewhere in this Agreement, Net Cash Proceeds from
Dispositions permitted by Section 6.4(g) shall not constitute Net
Cash Proceeds from Asset Sales for the purposes of this Section
2.6(a)(i) .”
Section 3.05.
Maximum Indebtedness (Section
6.1(b)) . Section 6.1(b)
of the Credit Agreement is hereby amended and restated by deleting
such section and substituting in lieu thereof the
following:
“(b)
Notwithstanding the provisions of Section 6.1(a) the Company
will not, and will not permit any of its Subsidiaries to, permit
the aggregate principal amount of Indebtedness of (x) the Group
Members at any time to exceed (A) the amount specified for the
Group Members in the table below minus (b) the aggregate amount
from time to time of the Norway Prepayment and Commitment Reduction
(as defined in the Consent, Waiver and Third Amendment, dated as of
May 9, 2005 made by the Agents and Lenders in favor of Trico
Assets, Trico Operators, the Company, TMI, TMIH, Trico Supply and
the other Subsidiaries of the Company listed on the signature pages
thereto) or (y) the Specified Group Members at any time to exceed
the amount specified for the S
