Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND
RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”),
dated as of May 18, 2005 (the “Effective Date”), is
among Tidewater Inc., (the “Company”), the Domestic
Subsidiaries of the Company named on Exhibit “A”
attached hereto (herein together with the Company called the
“Companies”), Fleet National Bank, as administrative
agent (the “Administrative Agent”), JPMorgan Chase
Bank, N.A., as successor to Bank One, NA (Main Office Chicago), as
documentation agent (the “Documentation Agent”), and
Royal Bank of Canada and Wells Fargo Bank, N.A., as successor to
Wells Fargo Bank Texas, N.A., as co-syndication agents (the
“Syndication Agents”) (the Administrative Agent, the
Documentation Agent and the Syndication Agents, collectively, the
“Agents”), and certain of the banks listed on the
signature pages hereof (the “Original Lenders”), who
agree as follows:
RECITALS
A. The Companies, the Agents and the
Original Lenders have executed an Amended and Restated Revolving
Credit Agreement dated as of August 15, 2003 (the “Credit
Agreement”).
B. The Companies have requested that
the Original Lenders (i) increase the Commitments from $295,000,000
to $300,000,000 (with the option, subject to receiving additional
Commitments, to further increase the Commitments to up to
$400,000,000), (iii) extend the Termination Date from April 30,
2008 to May 18, 2010, (iii) modify the Applicable Base Rate Margin,
Applicable Eurodollar Rate Margin and Commitment Fee Rate, and (iv)
modify certain financial covenants. The Companies have also
requested that at least one additional Lender become a party to the
Credit Agreement (the Original Lenders and the additional Lender(s)
called the “Lenders”).
C. The Agent and Lenders are willing
to accept the Companies’ requests on the terms and conditions
set forth below.
D. Capitalized terms used herein,
and not otherwise defined herein, shall have the meanings defined
in the Credit Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants and undertakings, the parties hereby agree as
follows:
ARTICLE 1
AMENDMENTS TO THE CREDIT
AGREEMENT
1.1 Exhibit A (List of
Domestic Subsidiaries) attached to the Amendment is hereby
substituted for the Exhibit A attached to the Credit
Agreement.
1
1.2 Exhibit B (Line of Credit
Commitments of the Lenders) attached to this Amendment is hereby
substituted for the Exhibit B attached to the Credit Agreement. The
Original Lenders agree that their respective advances outstanding
on the Effective Date shall be increased or decreased as necessary
to reflect the revised Commitments set forth on Exhibit B
attached to this Amendment. To the extent that any Original
Lender’s Pro Rata Share changes as a result of such
adjustments, such Original Lender hereby assigns or accepts the
interest of the other Lenders in order to effect such
adjustments.
1.3 Section 1.1 (Line of Credit) of
the Credit Agreement is hereby amended to read as
follows:
1.1 Line of Credit . The
Lenders shall severally establish a revolving line of credit (the
“Line of Credit”) which may be drawn upon by the
Companies on any Business Day during the period from the Effective
Date until the Termination Date, in such amounts (but not less than
$5,000,000 per Advance and above $5,000,000 in even multiples of
$1,000,000) as the Companies may from time to time request
(individually, an “Advance” and, collectively, the
“Advances”), but not exceeding $300,000,000 (as such
amount may be increased pursuant to Section 1.1.2 below or
decreased pursuant to Section 4.2 hereof), being the aggregate
amount of the commitments for the Line of Credit set forth on
Exhibit B hereto (the “Line of Credit Commitments”) as
of the Effective Date. The credit available to the Companies from
time to time under the Line of Credit shall be reduced by (i) the
aggregate amount of any and all unpaid Advances outstanding on the
Line of Credit, (ii) the aggregate amount of any and all unpaid
Advances outstanding on the Swing Line Loan, and (iii) the
aggregate face amount of all outstanding Letters of Credit, and
shall constitute the “Available Credit.”
1.4 Section 1.1.2 (Increase of
Credit Facility) of the Credit Agreement is hereby amended and
restated to read as follows:
1.1.2 Increase of Credit
Facility . The Companies and the Administrative Agent and
Documentation Agent, without the consent of any other Lenders, may
increase the Credit Facility one or more times, up to the aggregate
amount of $400,000,000, by either or both of the following methods:
(i) one or more existing Lenders voluntarily increases its Line of
Credit Commitment and/or (ii) one or more additional lenders
approved by the Companies issue Line of Credit Commitments and
become parties to and Lenders under this Agreement; provided
, that each of the Lenders shall have the first right to increase
its Commitment in an amount equal to its Pro Rata Share of the
total increase in the Commitments; and provided further ,
that any new Lender shall meet the qualifications applicable for an
Eligible Assignee; and provided further , that any Lender
organized under a jurisdiction other than the United States has
provided the Administrative Agent and the Company with the tax
forms prescribed in Section 11.6 hereof (and provided further that
such foreign Lender shall not transfer its interests, rights or
obligations under
- 2 -
this Agreement to any Affiliate of
such foreign Lender unless such Affiliate provides the
Administrative Agent and the Company with the aforesaid tax forms.
In the event of either or both (i) and (ii) above, the
Documentation Agent shall amend and restate Exhibit B hereto to
reflect the revised Line of Credit Commitments of increasing or new
Lenders and the adjusted Pro Rata Shares of all Lenders; the
Documentation Agent shall promptly distribute the revised Exhibit B
to the Company and to all Lenders. The Line of Credit Commitment of
a Lender may not be increased without the consent of that Lender.
Any additional Lenders shall become a party to this Agreement by
delivering to the Administrative Agent an executed signature page
of this Agreement. The Company and its Domestic Subsidiaries shall
execute and deliver new Line of Credit Notes to existing Lenders
for the increased amount of their Line of Credit Commitments and
shall deliver new Line of Credit Notes to new Lenders for the
amount of their Line of Credit Commitments.
1.5 Section 6.3(a) of the Credit
Agreement is hereby amended and restated to read as
follows:
6.3 Covenant to Secure Credit
Facility Equally . (a) The Company agrees that if it or any of
its Subsidiaries incurs or permits to exist any Debt in any event
in excess of an aggregate principal amount equal to $10,000,000
which is secured by any Lien of any kind upon any of its property
or assets, whether now owned or hereafter acquired (except as
permitted by Section 6.8(v) hereof), unless prior written consent
to the creation or assumption thereof shall have been obtained, the
Company will and/or will cause its Subsidiaries simultaneously to
secure the Credit Facility equally and ratably with any and all
other Debt thereby secured, as long as any such other Debt shall be
so secured.
1.6 Section 6.8 (Liens) of the
Credit Agreement, Clause (vi), is hereby amended to substitute
“twenty-five percent (25%) of Consolidated
Stockholders’ Equity” for “fifteen percent (15%)
of Consolidated Stockholders’ Equity.”
1.7 Section 6.10 (Dispositions of
Stock and Debt) of the Credit Agreement is hereby amended and
restated to read as follows:
6.10 Sale of Assets . Except
as permitted by Section 6.11, the Companies will not, and will not
permit any other Subsidiary to, sell, lease, transfer or otherwise
dispose of, including by way of merger (collectively a
“Disposition”), any assets, including capital stock of
Subsidiaries, in one or a series of transactions, to any Person,
other than:
(a) Dispositions of assets in the
ordinary course of business, including the demise charter, time
charter and bareboat charter of any vessel;
(b) Dispositions of assets by a
Domestic Subsidiary to the Company or to any other Domestic
Subsidiary or by the Company to any Domestic Subsidiary;
(c) Dispositions of assets by a
Foreign Subsidiary to the Company or any other
Subsidiary;
- 3 -
(d) Subject to Section 6.9(v),
Dispositions of the capital stock of a Subsidiary in connection
with the creation of a joint venture; or
(e) Dispositions of assets not
otherwise permitted by this Section 6.10, provided that the
aggregate net book value of all assets so disposed of in any fiscal
year pursuant to this Section 6.10(e) does not exceed 15% of
Consolidated Total Assets as of the end of the immediately
preceding fiscal year.
Notwithstanding the foregoing, the
Company or any Domestic Subsidiary may make a Disposition of
assets, and the assets subject to such Disposition shall not be
subject to or included in the foregoing limitation and computation
contained in clause (e) of the preceding sentence, to the extent
that the net proceeds from such Disposition are within 365 days of
such Disposition reinvested in tangible assets to be used in the
existing business of the Company or any Domestic Subsidiary,
including the refurbishment of existing or new vessels.
1.8 Section 6.11 (Mergers and
Consolidations) of the Credit Agreement is hereby amended and
restated to read as follows:
6.11 Mergers and
Consolidations . The Companies agree that they will not and
will not permit any Subsidiary to merge or consolidate with any
other corporation, except that provided no Default has occurred and
is continuing and further provided that no Default will occur as a
result thereof:
(a) any Subsidiary may merge or
consolidate with the Company (provided that the Company shall be
the continuing or surviving corporation) or with any one or more
other Subsidiaries;
(b) the Company may merge or
consolidate with any corporation provided that the Company shall be
the continuing or surviving corporation;
(c) any Subsidiary may merge or
consolidate with any corporation provided such continuing or
surviving corporation shall remain or become a Subsidiary of the
Company; and
(d) the Companies may make
dispositions permitted under Section 6.10.
1.9 Section 6.12 (Minimum EBITDA to
Fixed Charge Ratio), Section 6.13 (Maximum Funded Debt to EBITDA
Ratio) and Section 6.14 (Maximum Funded Debt to Total
Capitalization Ratio) of the Credit Agreement are hereby amended
and restated to read as follows:
6.12 Minimum EBITDA to Interest
Ratio . The Company agrees that it will not permit its EBITDA
to Interest Ratio to be less than 3.00 to 1.00, as of the end of
each fiscal quarter of the Company.
- 4 -
6.13 Intentionally Omitted
.
6.14 Maximum Funded Debt to Total
Capitalization Ratio . The Company agrees that it will not
permit its Funded Debt to Total Capitalization Ratio to be greater
than 0.55 to 1.00, as of the end of each fiscal quarter of the
Company.
1.10 Section 10.6 (Assignments and
Participations) of Credit Agreement is hereby amended and restated
to read as follows:
10.6 Successors and Assigns
Generally, Assignments and Participations . (a) Successors
and Assigns Generally . The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except
that none of the Companies may assign or otherwise transfer any of
their rights or obligations hereunder without the prior written
consent of the Administrative Agent and all of the Lenders, and no
Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants as defined in
and to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Affiliates of each
of the Administrative Agent, and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders .
Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in
Letters of Credit and in Swing Line Loans) at the time owing to
it); provided that
(i) except in the case of an
assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of
the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and
Acceptance, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise
consents;
- 5
