exv10w5






Exhibit 10.5




EQUITY COMMITMENT AGREEMENT




TRICO SHIPPING AS




(the Issuer)




TRICO SUPPLY AS




(the Subscriber)




AND




WILMINGTON TRUST FSB




(the Collateral Agent)









Oslo • Bergen • London • Singapore • Shanghai • Kobe




 









 





This equity commitment agreement (the “Agreement”) is made on October 30, 2009 between:




	(1)	 	Trico Shipping AS, Stoltenberggata 1, 5527 Haugesund, Norway, organisation number 976 854 020
(the “Issuer”);
	 
	(2)	 	Trico Supply AS, Stoltenberggata 1, 5527 Haugesund, Norway, organisation number 976 853 938
(the “Subscriber”); and
	 
	(3)	 	Wilmington Trust FSB, a federal savings bank duly organized under the laws of the United
States of America, in its capacity as collateral agent (together with any successor thereto in
such capacity, the “Collateral Agent”) for the holders of the Secured Obligations (as defined
in that certain Collateral Agency and Intercreditor Agreement, dated as of the date hereof,
among the Collateral Agent (as defined herein), the Trustee (as defined therein), the Working
Capital Facility Agent (as defined therein), the Issuer and the Guarantors (as defined
therein), as amended, modified or restated from time to time (the “Collateral Agency and
Intercreditor Agreement”).





WHEREAS:





	 	(A)	 	Concurrently with the execution of this Agreement, the Issuer is entering into the
Indenture and the Working Capital Facility Agreement (each as defined in the Collateral
Agency and Intercreditor Agreement).
	 
	 	(B)	 	The Subscriber is the parent company of the Issuer, and owns all of the share capital
of the Issuer (the “Shares”).
	 
	 	(C)	 	The Subscriber and the Issuer wish to help ensure that the Issuer is able to fulfill
its obligations under the Indenture and the Working Capital Facility Agreement.
	 
	 	(D)	 	The Subscriber is obligated hereunder and by the Secured Documents (as defined in the
Collateral Agency and Intercreditor Agreement) to pledge any new Shares acquired by the
Subscriber pursuant to this Agreement as security for the Secured Obligations.





THE PARTIES HEREBY AGREES AS FOLLOWS:




     1. Commitment to Subscribe and Issue




The Subscriber hereby commits and undertakes to subscribe for newly issued Shares, or make
contributions to the Issuer with a corresponding increase in the par value of the Issuer’s share
capital, in the aggregate amount of up to USD 240 million (the “Maximum Amount”) for a period of
five years from the date of this Agreement, in accordance with the provisions of this Agreement.



2









 





The Issuer hereby commits and undertakes to take all actions required to give effect to this
Agreement, including to ensure issuance of any new Shares to the Subscriber or to increase the par
value of its share capital in accordance with the provisions of this Agreement.



The Subscriber, being the sole shareholder of the Issuer, hereby commits and undertakes to take all
actions and resolve all resolutions, and to cause the board of directors of the Issuer to take all
actions and resolve all resolutions, necessary to give effect to this Agreement, including to issue
any new Shares or increase the par value of the Issuer’s share capital in accordance with the
provisions of this Agreement.



     2. Subscription/Contribution




          a. Scheduled Subscriptions/Contributions




On the terms and subject to the conditions set forth herein, the Subscriber shall, on the fifteenth
day of each calendar month during the term of this Agreement or, if such day is not a Business Day
(as defined herein), the next succeeding Business Day (each a “Scheduled Subscription Date”), (i)
subscribe for Shares with an aggregate subscription price of USD 5,000,000 or (ii) take all
necessary corporate actions to make a contribution to the Share capital of the Issuer in an
aggregate amount of USD 5,000,000 (such subscription or contribution, the “Scheduled
Subscription”). As soon as possible after the receipt by the Issuer of the Scheduled Subscription
on each Scheduled Subscription Date, the Issuer shall (i) in the case of a Share subscription,
issue new Shares to the Subscriber in the amount of the Scheduled Subscription or (ii) in the case
of a capital contribution to the Issuer, take appropriate steps to reflect the Scheduled
Subscription as an increase in the par value of the Issuer’s share capital. As used herein,
“Business Day” means any day except a Saturday, Sunday or other day on which banks in Norway are
authorized by law to close.



Notwithstanding the above, if, during each day in the five Business Day period beginning five
Business Days prior to the end of any month commencing January 1, 2011, the Issuer has a minimum of
$30 million in cash or Cash Equivalents (as defined in the Indenture), which is not “restricted
cash” as such term is used in the Issuer’s financial statements, available in its deposit accounts,
then the Scheduled Subscription scheduled to occur on the Scheduled Subscription Date of the
following month shall only occur at the Issuer’s sole option (and the Issuer shall provide notice
to the Subscriber by 9:00 a.m. Norwegian time on the Scheduled Subscription Date if it is
exercising its option to require the Subscriber to make a Scheduled Subscription on such date).



          b. Demand Subscriptions/Contributions




At the Issuer’s sole option upon five Business Days’ notice (each a “Demand Subscription Date”) to
the Subscriber, the Issuer may require the Subscriber to subscribe for Shares having an aggregate
subscription price, or take all necessary corporate actions to make a contribution to the Share
capital of the Issuer, in an amount not to exceed USD 1,000,000 in any month (such subscription or
contribution, the “Demand Subscription”). As soon as possible after the receipt by the Issuer of
any Demand Subscription, the Issuer shall (i) in the case of a Share subscription, issue new Shares
to the Subscriber in the amount of such Demand Subscription or (ii) in the case of a capital
contribution to the Issuer, take appropriate steps to reflect such Demand Subscription as an
increase in the par value of the Issuer’s share capital. Any



 









 







Demand Subscription shall be in addition to the Scheduled Subscriptions, and participation in any
Demand Subscriptions shall not affect in any way the obligation of the Subscriber to participate in
the Scheduled Subscriptions, and vice versa; provided, however, in no event shall the aggregate
amount of all Scheduled Subscriptions and Demand Subscriptions made by the Subscriber pursuant to
this Agreement exceed the Maximum Amount.



At the Issuer’s sole option, with respect to any Scheduled Subscription or Demand Subscription, the
Issuer may increase the par value of the existing Shares held by the Subscriber in lieu of issuing
new Shares to the Subscriber; provided that such increase in par value results in the
Issuer receiving the same amount of cash from the Subscriber as if the Issuer had issued new Shares
to the Subscriber.



     3. Subscription Price




The subscription price per share for new Shares shall be an amount in cash equal to the greater of
(a) the fair market value per share of the new Shares as determined by the Issuer and (b) the par
value per share of the new Shares, and the Subscriber shall pay the aggregate subscription price on
a Scheduled Subscription Date (in the case of a Scheduled Subscription) or on a Demand Subscription
Date(in the case of a Demand Subscription).



Following subscription of new Shares or completion of the required actions to increase the par
value of the Shares, the funds paid by the Subscriber shall be immediately available for full use
by the Issuer when paid by the Subscriber, regardless of whether the new Shares have been issued or
registered or any change in par value of existing Shares has been registered in the Norwegian
Register for Business Enterprises. The Issuer and Subscriber undertake to ensure that required
resolutions are made to fulfil this obligation.



     4. Condition for subscription




It is a condition for participation by the Subscriber in any Scheduled Subscription or Demand
Subscription that the Subscriber or any of its subsidiaries (other than the Issuer or the Issuer’s
subsidiaries) have available cash or cash equivalents (which are not “restricted cash” of the
Subscriber) sufficient to fund such Scheduled Subscription or Demand Subscription and which cash
may be lawfully made available to the Subscriber for the purposes of this Agreement.



     5. Resolutions and subscription of shares




The Issuer and the Subscriber shall ensure that valid corporate resolutions to issue new Shares or
reflect an increase in the par value of the Issuer’s share capital in connection with Scheduled
Subscriptions or Demand Subscriptions to the Subscriber are adopted no later than the Business Day
immediately preceding a Scheduled Subscription Date or a Demand Subscription Date.



     6. Registration of share capital




The Issuer shall ensure that any increase of its share capital is duly registered in the Register
of Business Enterprises as promptly as practicable after subscription and payment has occurred. The
Issuer shall use commercially reasonable efforts to seek speedy process with the Register of
Business Enterprises to the extent possible.



 









 





The Issuer shall, promptly after the registration of any increase in its share capital, update its
shareholder register.



     7. Pledge




Simultaneously with the registration of any new Shares issued to the Subscriber in the shareholders
register, the Issuer and the Subscriber shall take appropriate actions to ensure that a pledge over
all of the Shares issued under any Scheduled Subscription or Demand Subscription are registered
with the Collateral Agent, as agent and representative of and on behalf of and for the benefit of
the Secured Parties (as defined in the Collateral Agency and Intercreditor Agreement) to secure
payment and performance in full of all Secured Obligations. Confirmation of registration of pledge
shall be sent to the Collateral Agent promptly after such registration.



Notwithstanding the foregoing, any such pledge shall not be required if and to the extent such
pledge would cause (i) the Issuer to become subject to the reporting requirements under the United
States Securities Exchange Act of 1934, as amended, or (ii) the financial statements of the Issuer
to be filed with the United States Securities and Exchange Commission (or any other governmental
agency) pursuant to Rule 3-10 or Rule 3-16 of Regulation S-X under the United States Securities Act
of 1933, as amended (or any other law, rule or regulation).



     8. Amendments to the Agreement




This Agreement may not be amended without the prior written consent of the Collateral Agent, the
Issuer and the Subscriber.



     9. Notices




Notices under this Agreement shall be deemed validly given



i    if to the Issuer or to the Subscriber, to:

Trico Shipping AS

c/o Trico Marine Services, Inc.

10001 Woodloch Forest Drive

Suite 610

The Woodlands, TX 77380

Contact person: Rishi Varma, General Counsel

Telefax: (281) 203-5701

E-mail: rvarma@tricomarine.com


with a copy to:

Trico Marine Services, Inc.

10001 Woodloch Forest Deive

Suite 610

The Woodlands, TX 77380

Contact person: Stephen Morrell, Treasurer

Telefax: (281) 203-5701

E-mail: smorrell@tricomarine.com


with a copy to:




 









 







Bartlit Beck Herman Palenchar & Scott, LLP

1899 Wynkoop Street, 8th floor

Denver, CO 80202

Attn: Polly Swartzfager

Phone: (303) 592-3175

Fax: (303) 592-3140


ii if to the Collateral Agent to:

Wilmington Trust FSB, as Collateral Agent

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attn: Peter Finkel

Phone: (612) 217-5629

Fax: (612) 217-5651


with a copy to:

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, New York 10178

Attn: Martin F. Conniff

Phone: (212) 309-6000

Fax: (212) 309-6001




The Issuer, the Subscriber and the Collateral Agent, by notice to the other parties hereto, may
designate additional or different addresses for subsequent notices.



     10. Term




The term of this Agreement shall commence on the date hereof and continue until the earlier of (i)
payment in full of the Secured Obligations, and (ii) payment of subscriptions and/or contributions
by the Subscriber to the Issuer in an aggregate amount equal to the Maximum Amount.



     11. Conflict




The Collateral Agency and Intercreditor Agreement and the Secured Documents shall be supplemental
to this Agreement. If there is a conflict between the provisions of this Agreement and those
contained in the Collateral Agency and Intercreditor Agreement and/or the Secured Documents, then
(to the extent permitted by law) the provisions of the Collateral Agency and Intercreditor
Agreement and/or the Secured Documents shall take priority over the provisions of this Agreement.



     12. Governing law and jurisdiction




This Agreement shall be governed by and construed in accordance with Norwegian law and be subject
to the non-exclusive jurisdiction of the Norwegian courts with Oslo district court as the
non-exclusive legal venue.



*****




 









 








This Agreement has been prepared in 3 originals, whereof the parties have received one each.



	 	 	 	 	 
	Trico Shipping AS

	 	 	 	Trico Supply AS
	 
	 	 	 	 
	/s/
Gerald A. Gray

	 	 	 	/s/ Rishi A. Varma
	 

	 	 	 	 
	Name:
Gerald A. Gray 

Title:   Managing Director

	 	 	 	Name: Rishi A. Varma

Title:   Chairman of the Board
	 
	 	 	 	 
	 

	 	Wilmington Trust FSB, as

Collateral Agent	 	 
	 
	 	 	 	 
	 

	 	/s/ Peter Finkel	 	 
	 

	 	 	 	 
	 

	 	Name: Peter Finkel

Title:   Vice President