EXHIBIT 10.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this
“Amendment” ) is dated as of April 7, 2008
and is entered into by and among J. RAY MCDERMOTT, S.A. , a
Panamanian corporation (the “ Borrower” ),
CERTAIN OF THE GUARANTORS executing the signature pages
hereto, CERTAIN LENDERS (as such term is defined in the
hereinafter described Credit Agreement) listed on the signature
pages hereto (the “Lenders” ), and CREDIT SUISSE, CAYMAN ISLANDS
BRANCH , as Administrative Agent (in such capacity,
“Administrative Agent” ) and as Collateral Agent
(in such capacity, “Collateral Agent” ), and is
made with reference to that certain CREDIT AGREEMENT dated
as of June 6, 2006 (as amended by the First Amendment dated as
of August 4, 2006, the Second Amendment dated as of
December 1, 2006, the Third Amendment dated as of July 9,
2007 and the Fourth Amendment dated as of July 20, 2007, the
“Credit Agreement” ) by and among Borrower,
Lenders, Administrative Agent and the other agents party thereto.
Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement after
giving effect to this Amendment.
RECITALS
WHEREAS, the Borrower has requested that the Lenders agree
to amend certain provisions of the Credit Agreement as provided for
herein; and
WHEREAS, subject to certain conditions provided for herein,
the Lenders are willing to agree to such amendments.
NOW, THEREFORE , in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties
hereto agree as follows:
SECTION I. Amendments
1.1 Amendments to Cover Page and
Recitals.
A. The cover page of the Credit Agreement is hereby amended
by deleting the reference to “$500,000,000” and
replacing it with “$800,000,000”.
B. The first and second recitals of the Credit Agreement are
hereby amended and replaced in their entirety as follows:
WHEREAS,
the Borrower has requested the Lenders to extend credit in an
aggregate principal amount of up to $800,000,000 on the terms and
conditions set forth in this Agreement (and its related schedules
and exhibits) in order to recapitalize its existing indebtedness,
including its Existing Secured Notes (the “
Recapitalization ”) and for working capital needs and
other general corporate purposes;
WHEREAS,
the Lenders and the Issuers have agreed to extend certain senior
secured credit facilities to the Borrower, in an aggregate amount
not to exceed $800,000,000, consisting of a Revolving Facility
available at any time and from time to
time on or
after the Effective Date but prior to the Revolving Facility
Termination Date, which will be used to issue Letters of Credit and
for Revolving Loans the proceeds of which shall be used for working
capital needs and for general corporate purposes, in accordance
with this Agreement;
1.2 Amendments to Article I:
Definitions.
A. Section 1.1 of the Credit Agreement is hereby
amended by adding the following definitions in proper alphabetical
sequence:
“
Fifth Amendment ” means that certain Fifth Amendment
to Credit Agreement dated as of April 7, 2008 among the
Borrower, the Administrative Agent, the Collateral Agent and the
Lenders listed on the signature pages thereto.
“
Fifth Amendment Effective Date ” means the date of
satisfaction of the conditions referred to in Section II of
the Fifth Amendment.
B. Section 1.1 of the Credit Agreement is hereby
further amended by deleting the reference to
“$400,000,000” in the definition of “Revolving
Facility” and replacing it with
“$800,000,000”.
1.3 Amendments to Section 2.1: The
Commitments
The
first sentence of Section 2.1(a) is hereby amended and
replaced in its entirety as follows:
“On
the terms and subject to the conditions contained in this
Agreement, each Lender under the Revolving Facility severally
agrees to make loans (each a “ Revolving Loan ”)
to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Revolving Facility
Termination Date in Dollars in an aggregate principal amount at any
time outstanding that will not result in such Lender’s
Revolving Exposure exceeding such Lender’s Revolving
Commitment; provided , however , that at no time
shall any Lender be obligated to make a Revolving Loan in excess of
such Lender’s Revolving Commitment.”
1.4 Amendments to Section 7.13: Post-Closing
Covenants
Section 7.13 of the Credit
Agreement is hereby amended by inserting new clauses (k) and
(l) immediately after clause (j) thereof, such clauses
(k) and (l) to read in their entirety as follows:
“(k)
Collateral Documents. Within 30 Business Days after the
Fifth Amendment Effective Date (or such longer period of time as
permitted by the Collateral Agent in its sole reasonable
discretion), the Borrower shall deliver to the Collateral Agent any
new Mortgages and all amendments or supplements to any existing
Mortgages, duly executed by the applicable Loan Party, and any
other documentation necessary or reasonably advisable in connection
with the transactions contemplated by the Fifth Amendment to be
filed, registered or recorded in order to create or maintain in
favor of the Collateral Agent
2
for the ratable
benefit of the Secured Parties a valid, legal and perfected
first-priority Lien (subject only to Liens permitted under the
Credit Agreement) on, and security interest in, the Collateral;
provided that the Borrower shall have 60 Business Days (or
such longer period of time as permitted by the Collateral Agent in
its sole reasonable discretion) to deliver any such amendments to
Mortgages and related documentation with respect to the McDermott
Derrick Barge No. 26 and Barmada McDermott
(L) Limited.
(l)
Opinions. Within 30 Business Days after the Fifth Amendment
Effective Date (or such longer period of time as permitted by the
Collateral Agent in its sole reasonable discretion), the
Administrative Agent shall have received favorable written
opinions, in each case in substantially the form agreed to by the
Administrative Agent and the Borrower as of the Fifth Amendment
Effective Date, of (A) Arias, Fábrega &
Fábrega, (B) Gardere Wynne Sewell LLP, (C) Reed
Smith Richards Butler LLP, and (D) Clarke Gittens &
Farmer.
1.5 Amendments to Schedule I:
Commitments
Schedule I of the Credit
Agreement is hereby amended by deleting it in its entirety and
replacing it with the new Schedule I annexed hereto as
Exhibit A. Each Lender that is not, prior to the Fifth
Amendment Effective Date, a party to the Credit Agreement as a
Lender (i) confirms that it has received a copy of the Credit
Agreement and the other Loan Documents, together with copies of the
most recent financial statements of the Borrower delivered pursuant
thereto and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Amendment; (ii) agrees that it has, independently
and without reliance upon the Administrative Agent, the Collateral
Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Amendment;
(iii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Collateral Agent or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents;
(iv) appoints and authorizes the Administrative Agent and the
Collateral Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are
delegated to the Administrative Agent and the Collateral Agent by
the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (v) agrees that it is a
“Lender” under the Loan Documents (and the Borrower and
Guarantors hereby acknowledge it is a “Lender”) and
will perform in accordance with their terms all of the obligations
that by the terms of the Loan Documents are required to be
performed by it as a Lender. The Administrative Agent and each
Lender hereby agrees that the Commitments set forth on the new
Schedule I annexed hereto as Exhibit A shall be effective
as of the Fifth Amendment Effective Date.
SECTION II. CONDITIONS TO
EFFECTIVENESS
This
Amendment shall become effect
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