exv10w14







Exhibit
10.14

 




 

 








AMENDMENT NO. 3




TO




SENIOR SECURED CREDIT FACILITY AGREEMENT




dated December 28, 2005




made among




RIGDON MARINE CORPORATION




by




DVB BANK NV,

as Underwriter, Arranger, Book Manager, Facility Agent and Security Trustee,




DVB BANK AG,

as Swap Bank,




and




and the Banks, Financial Institutions and Persons

identified on Schedule 1 to the Original Agreement, as Lenders





 

 


July 1, 2008









 











 






AMENDMENT NO. 3 TO SENIOR SECURED CREDIT FACILITY AGREEMENT




          THIS AMENDMENT NO. 3 TO SENIOR SECURED CREDIT FACILITY AGREEMENT (this “Amendment”) is made as
of the 1st day of July, 2008 by and among (1) RIGDON MARINE CORPORATION, a corporation incorporated
under the laws of the State of Delaware (the “Borrower”), (2) the banks and financial institutions
as are listed on the signature pages hereto (together with their respective successors and assigns,
the “Lenders”), (3) DVB BANK AG, as swap bank (the “Swap Bank”) and (4) DVB BANK NV (“DVB”), as
underwriter, arranger, book manager and facility agent for the Lenders (in such capacity, the
“Facility Agent”) and security trustee for the Lenders and the Swap Bank (in such capacity, the
“Security Trustee”), and amends and is supplemental to that Senior Secured Credit Facility
Agreement dated as of December 28, 2005, as amended by Amendment No. 1 thereto dated as of February
28, 2006 and by Amendment No. 2 thereto dated as of May 9, 2007 (as so amended, the “Original
Agreement”) made by and among the Borrower, the Lenders, the Facility Agent and the Security
Trustee.




WITNESSETH THAT:




          WHEREAS, pursuant to the Original Agreement, the Lenders made available to the Borrower a
secured term loan in the principal amount of up to US$224,000,000 (the “Facility”) in three
tranches, Tranche A, Tranche B and Tranche C, for the purposes described in Section 3.1 thereof;




          WHEREAS, the current aggregate outstanding principal of the Original Facility is
US$154,894,726.00 and the committed but undrawn portion of the Original Facility is
US$41,840,998.00;




          WHEREAS, GulfMark Offshore, Inc. (“GulfMark”) has entered into a purchase agreement to acquire
the Borrower;




          WHEREAS, pursuant to that certain letter request dated June 17, 2008 (the “Amendment Request
Letter”) given by the Borrower and GulfMark to the Lenders, the Facility Agent and the Security
Trustee, the Borrower has requested certain amendments to the Original Agreement in order to keep
the Facility in place following the acquisition of the Borrower by GulfMark;




          WHEREAS, each of the Lenders, the Facility Agent and the Security Trustee has agreed to keep
the Facility in place following the acquisition of the Borrower by GulfMark subject to,
inter alia, the following conditions: (i) GulfMark shall provide an unconditional
guarantee of the Facility and the Borrower’s obligations under the Original Agreement (as amended
hereby), the Note and Security Documents, (ii) the term of the Facility shall be shortened and
shall terminate on June 30, 2010; and (iii) the Borrower shall pay each Lender an amendment fee in
an amount equal to 0.25% of such Lender’s respective Commitment;




          WHEREAS, in light of the foregoing, each of the parties desires to amend certain provisions of
the Original Agreement as set forth below.




 









 








          NOW, THEREFORE, in consideration of the premises and such other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged by the parties, it is
hereby agreed as follows:




          1. Definitions. Unless otherwise defined herein, words and expressions defined in the
Original Agreement have the same meanings when used herein, including in the recitals hereto.




          2. Representations and Warranties. The Borrower hereby reaffirms, as of the date
hereof, each and every representation and warranty made thereby in the Original Agreement, the Note
and the other Security Documents (updated mutatis mutandis).




          3. No Defaults. The Borrower hereby represents and warrants that as of the date
hereof there exists no Event of Default or any condition which, with the giving of notice or
passage of time, or both, would constitute an Event of Default, except for the Change of Control as
a result of the purchase of the Borrower by GulfMark, which Event of Default the Lenders hereby
waive.




          4. Performance of Covenants. The Borrower hereby reaffirms that it has duly performed
and observed the covenants and undertakings set forth in the Original Agreement, the Note and the
other Security Documents, on its part to be performed, and the Borrower covenants and undertakes to
continue duly to perform and observe such covenants and undertakings, as amended hereby, so long as
the Original Agreement, as the same is amended hereby and may hereafter be amended or supplemented,
shall remain in effect.




          5. Amendment to the Original Agreement. Subject to the terms and conditions of this
Amendment, the Original Agreement is hereby amended and supplemented as follows:





	 	(a)	 	all references to “this Agreement” or “Credit Facility
Agreement” shall be deemed to refer to the Original Agreement as amended
hereby;
	 
	 	(b)	 	Section 1.1 is hereby amended as follows:






	 	(i)	 	the definition of “Amendment Request Letter”
shall be inserted as follows:
	 
	 	 	 	“means that certain letter request dated June 17, 2008 by the
Borrower and the Guarantor to, inter alios, the
Facility Agent with respect to certain amendments to this Credit
Facility Agreement and the Subordinated Mortgage Debt;”;
	 
	 	(ii)	 	the definition of “Change of Control” shall be
deleted and replaced in its entirety with the following:
	 
	 	 	 	“means (a) any “person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the beneficial owner (as





2









 











	 	 	 	defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 25% of the total voting power of the
Borrower, or (b) the Board of Directors of the Borrower ceases to
consist of a majority of the directors existing on the date hereof or
directors nominated by GulfMark Management, Inc. or any other
Subsidiary of the Guarantor who is the shareholder of the Borrower;”;
	 
	 	(iii)	 	the definition of “Guarantor” shall be inserted as follows:
	 
	 	 	 	“means GulfMark Offshore, Inc., a Delaware corporation;”;
	 
	 	(iv)	 	the definition of “Guaranty” shall be inserted as follows:
	 
	 	 	 	“means the guaranty to be executed by the Guarantor in respect of the
obligations of the Borrower under and in connection with this Credit
Facility Agreement and the Note in favor of the Security Trustee;”;
	 
	 	(v)	 	the definition of “Mortgages” shall be amended
by inserting the following at the end of such definition before the
semi-colon:
	 
	 	 	 	“, as such mortgages shall be amended from time to time”
	 
	 	(vi)	 	the definition of “RMLLC” shall be amended by
inserting the following at the end of such definition before the
semi-colon:
	 
	 	 	 	“which will be dissolved and its assets assigned to and its
liabilities assumed by GulfMark Management, Inc.”;
	 
	 	(vii)	 	the definition of “Security Party(ies)” shall
be inserted as follows:
	 
	 	 	 	“means the Borrower and the Guarantor, or either of them, as the
context may require;”;
	 
	 	(viii)	 	the definition of “Subordinated Agent” shall be inserted as follows:
	 
	 	 	 	“means DVB Bank NV in its capacities as facility agent and security
trustee under the Subordinated Loan Agreement;”;
	 
	 	(ix)	 	the definition of “Subordinated Lender” shall
be deleted and replaced in its entirety with the following:
	 
	 	 	 	“Subordinated Lender(s)” means the banks and financial institutions
listed on Schedule 1 to the




3









 












	 	 	 	Subordinated Loan Agreement and such other
bank or financial institution as becomes a
party to the Subordinated Loan Agreement;”;
	 
	 	(x)	 	the definition of “Subordinated Loan Agreement”
shall be inserted as follows:
	 
	 	 	 	“means that certain assignment, assumption, amendment and restatement
of loan agreement dated as of July 1, 2008, made by and among (i)
Bourbon Capital U.S.A., Inc., as assignor, (ii) the Borrower, as
borrower, (iii) Subordinated Lenders and (v) the Subordinated Agent
providing for a Subordinated Mortgage Debt;”;
	 
	 	(xi)	 	the definition of “Subordinated Mortgage” shall
be replaced in its entirety with the following:
	 
	 	 	 	“means the second preferred fleet mortgage in favor of Subordinated
Agent over each of the Pre-existing Vessels and as shall be amended
or supplemented, from time to time, to cover any GPA 654 Vessels;”;
	 
	 	(xii)	 	the definition of “Subordinated Mortgage Debt”
shall be replaced in its entirety with the following:
	 
	 	 	 	“means the eighty five million dollar ($85,000,000) loan made or to
be made available by the Subordinated Lenders to the Borrower
pursuant to the Subordinated Loan Agreement and evidenced by a
promissory note of even date therewith;”;
	 
	 	(xiii)	 	the definition of “Subordination Agreement” shall be replaced in its
entirety with the following:
	 
	 	 	 	“means the subordination agreement to be entered into by the Facility
Agent, the Borrower, the Subordinated Agent and the Subordinated
Lenders;”;
	 
	 	(xiv)	 	the definition of “Tranche A Final Payment”
shall be replaced in its entirety with the following:
	 
	 	 	 	“means the balloon payment of such amount as may be necessary to
repay Tranche A on the Tranche A Final Payment Date, together with
accrued but unpaid interest and any other amounts owing by the
Borrower to the Facility Agent, the Security Trustee or any





4









 











	 	 	 	Lender pursuant to this Credit Facility Agreement, the Note or any
Security Document;”;
	 
	 	(xv)	 	the definition of “Tranche A Final Payment
Date” shall be replaced in its entirety with the following:
	 
	 	 	 	“means June 30, 2010;”;
	 
	 	(xvi)	 	the definition of “Tranche B Final Payment”
shall be replaced in its entirety with the following:
	 
	 	 	 	“means the balloon payment of such amount as may be necessary to
repay Tranche B on the Tranche B Final Payment Date, together with
accrued but unpaid interest and any other amounts owing by the
Borrower to the Facility Agent, the Security Trustee or any Lender
pursuant to this Credit Facility Agreement, the Note or any Security
Document;”;
	 
	 	(xvii)	 	the definition of “Tranche B Final Payment Date” shall be replaced in
its entirety with the following:
	 
	 	 	 	“means June 30, 2010;”;
	 
	 	(xviii)	 	the definition of “Tranche C Final Payment” shall be replaced in its
entirety with the following:
	 
	 	 	 	“means the balloon payment of such amount as may be necessary to
repay Tranche C on the Tranche C Final Payment Date, together with
accrued but unpaid interest and any other amounts owing by the
Borrower to the Facility Agent, the Security Trustee or any Lender
pursuant to this Credit Facility Agreement, the Note or any Security
Document;”;
	 
	 	(xix)	 	the definition of “Tranche C Final Payment
Date” shall be replaced in its entirety with the following:
	 
	 	 	 	“means June 30, 2010;”;






	 	(c)	 	Section 5.1(a) shall be amended by deleting the “eighty-four
(84)” from the initial sentence thereof;
	 
	 	(d)	 	Section 6.1 shall be amended by adding the following sentence
at the end of such section:
	 
	 	 	 	“The Facility Agent shall provide to the Borrower within two (2) Banking
Days following the last day of each calendar month, an electronic




5









 






	 	 	 	spreadsheet of the current liquidation value of the Interest Rate Agreement
that provides the monthly future interest rate and monthly discount rate
assumptions used in determining such valuation.”






	 	(e)	 	Section 8.1 shall be amended as follows:






	 	(i)	 	Section 8.1(e) shall be amended by deleting
each reference to “the Borrower” or “Borrower” therein and replacing it
with “any Security Party”;
	 
	 	(ii)	 	Section 8.1(g) shall be amended by inserting “,
the Guarantor” after “The Borrower” at the beginning of the initial
sentence thereof;
	 
	 	(iii)	 	Section 8.1(j) shall be amended by inserting
“, the Guarantor” after “The Borrower” at the beginning of the initial
sentence thereof;
	 
	 	(iv)	 	Section 8.1(m) shall be amended by inserting “,
the Guarantor” after “The Borrower” at the beginning of the initial
sentence thereof;






	 	(f)	 	Section 9.1(f) shall be amended by inserting “and the
Guarantor” after “the Borrower”;
	 
	 	(g)	 	Section 9.2(d) shall be amended by inserting the following at
the end of such section before the semi-colon:
	 
	 	 	 	“ other than to any other Subsidiary of the Guarantor;”;
	 
	 	(h)	 	Section 9.2(g) shall be amended by inserting the following at
the end of such section before the semi-colon:
	 
	 	 	 	“, except for such transactions with Affiliates”
	 
	 	(i)	 	Section 9.2(h) shall be deleted in its entirety;
	 
	 	(j)	 	Section 13.1 shall be amended by inserting the following
sentence at the end thereof:
	 
	 	 	 	“The Borrower shall pay to the Facility Agent (on behalf of the Lenders and
the Agents) such fees as are set forth in the Amendment Request Letter as
same become due and payable pursuant to the terms thereof.”;
	 
	 	(k)	 	All references to “Administrative Agent” in the Original
Agreement shall be deemed references to the “Facility Agent”;





          6. Consent to Acquisition of Borrower by GulfMark. Subject to the satisfaction of all
other conditions set forth in the Original Agreement and this Amendment and



6









 






provided that no Event of Default shall have occurred and be continuing (other than the Change
of Control caused by the acquisition by GulfMark of the Borrower), the Lenders hereby consent to
the acquisition by GulfMark of the Borrower and to the change in address of the principal executive
offices of the Company.




          7. Conditions Precedent. The effectiveness of this Amendment shall be expressly
subject to the following conditions precedent:





	 	(a)	 	Corporate Documents. The Facility Agent shall have
received the following documents in form and substance satisfactory to the
Facility Agent and its legal advisers:
	 
	 	(i)	 	copies, certified as true and complete by an officer of the
Borrower of the resolutions of the board of directors thereof evidencing
approval of this Amendment, the mortgage amendments and such other documents
as the Facility Agent may require pursuant to this Amendment and authorizing
appropriate officers or attorneys-in-fact to execute the same on its behalf;
	 
	 	(ii)	 	copies, certified as true and complete by an officer of
GulfMark of the resolutions of the board of directors thereof evidencing
approval of its Guaranty and authorizing appropriate officers or
attorneys-in-fact to execute the same on its behalf;
	 
	 	(iii)	 	copies, certified as true and correct by an officer of each
of the Borrower and GulfMark of its respective constitutional documents;
	 
	 	(iv)	 	certificates as to the good standing (or the equivalent) of
each of the Borrower and GulfMark; and
	 
	 	(b)	 	Guaranty. GulfMark shall have duly executed and
delivered a guaranty, substantially in the form attached hereto as Exhibit A,
pursuant to which GulfMark shall guarantee the performance by the Borrower of
its obligations under the Original Agreement (as amended hereby);
	 
	 	(c)	 	Mortgage Amendments. The Borrower shall have duly
executed and delivered an amendment to each of the Mortgages, substantially in
the form attached hereto as Exhibit B, and the Facility Agent shall have
received evidence of the recordation of such amendments with the National
Vessel Documentation Center;
	 
	 	(d)	 	Subordination Agreement. The Facility Agent shall have
received copies of the Subordination Agreement duly executed by the Borrower,
the Subordinated Agent and each of the Subordinated Lenders;
	 
	 	(e)	 	Fees Paid. The Agent shall have received payment in
full of all fees and expenses due under the Original Agreement and this
Amendment;




7









 












	 	(f)	 	No Event of Default. The Lenders and the Agents shall
be satisfied that no Event of Default or event which, with the passage of time,
giving of notice or both would become an Event of Default have occurred and be
continuing (other than the Change of Control caused by the acquisition by
GulfMark of the Borrower) and the representations and warranties of the
Borrower contained in the Original Agreement, as amended by this Amendment,
shall be true on and as of the date of this Amendment; and
	 
	 	(g)	 	Opinions. The Facility Agent shall have received (i)
an opinion from Messrs. Strasburger & Price, LLP and (ii) an opinion from
Messrs. Seward & Kissel LLP, counsel to the Lenders and the Agents, in each
case in such form as the Facility Agent shall reasonably require.





          8. No Other Amendment. All other terms and conditions of the Original Agreement shall
remain in full force and effect and the Original Agreement shall be read and construed as if the
terms of this Amendment were included therein by way of addition or substitution, as the case may
be.




          9. Other Documents. By the execution and delivery of this Amendment, the Borrower,
the Lenders, the Facility Agent and the Security Trustee hereby consent and agree that all
references in the other Security Documents to the Original Agreement shall be deemed to refer to
the Original Agreement as amended by this Amendment. By the execution and delivery of this
Amendment, the Borrower hereby consents and agrees that each of the Security Documents and any
other documents that may be executed as security for the Facilities under the Original Agreement or
any Security Document to which it is a party shall remain in full force and effect notwithstanding
the amendments contemplated hereby.




          10. Fees.





	 	(a)	 	Amendment Fee. The Borrower agrees to pay to the
Facility Agent (for the account of each Lender) upon the execution hereof an
amendment fee in an amount equal to 0.25% of such Lender’s respective
Commitment;
	 
	 	(b)	 	Expenses. The Borrower agrees to pay promptly all
costs and expenses (including reasonable legal fees) of the Lenders and the
Facility Agent in connection with the preparation and execution of this
Amendment;
	 
	 	(c)	 	Contingent Additional Fee. The Borrower shall pay the
Facility Agent (for the account of each Lender) an additional fee in an amount
equal to 0.15% of such Lender’s respective Commitment if this Original
Agreement (as amended hereby) is not re-financed prior to December 31, 2009;
and
	 
	 	(d)	 	Payments. All amounts payable under this Section 10
shall be made as set forth in the Original Agreement.




8









 











          11. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.




          12. Further Assurances. The Borrower agrees that if this Amendment or any document
delivered in connection herewith shall, in the reasonable opinion of the Lenders, at any time be
deemed by the Lenders for any reason insufficient in whole or in part to carry out the true intent
and spirit hereof or thereof, it will execute or cause to be executed such other and further
assurances and documents as in the opinion of the Lenders may be required in order to more
effectively accomplish the purposes of this Amendment, the Original Agreement, the Note or any
Security Document.




          13. Counterparts. This Amendment may be executed in as many counterparts as may be
deemed necessary or convenient, and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed to be an original but all such counterparts shall
constitute but one and the same agreement




          14. Headings; Amendment. In this Amendment, section headings are inserted for
convenience of reference only and shall be ignored in the interpretation of this Amendment. This
Amendment cannot be amended other than by written agreement signed by the parties hereto.




9









 





          IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment by its duly
authorized representative on the day and year first above written.




	 	 	 	 	 
	 	RIGDON MARINE CORPORATION

 	 
	 	By:  	/s/ Bruce Streeter
 	 
	 	 	Name:  	Bruce Streeter 	 
	 	 	Title:  	Chairman & CEO 	 
	 
	 	DVB BANK NV,

as Underwriter, Arranger, Book Manager, Facility Agent

and Security Trustee

 	 
	 	By:  	/s/ Matthew R. Cooley
 	 
	 	 	Name:  	Matthew R. Cooley 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 
	 	DVB BANK AG,

as Swap Bank

 	 
	 	By:  	/s/ Cornelis Overgaauw
 	 
	 	 	Name:  	Cornelis Overgaauw 	 
	 	 	Title:  	Senior Vice President 	 
	 	 	 
	 	By:  	/s/ C.V.D. Beek
 	 
	 	 	Name:  	C.V.D. Beek 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	The Lenders:



DVB BANK NV, as Lender

 	 
	 	By:  	/s/ Matthew R. Cooley
 	 
	 	 	Name:  	Matthew R. Cooley 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 
	 	NIBC BANK N.V., as Lender

 	 
	 	By:  	/s/ H. J. van West
 	 
	 	 	Name:  	H. J. van West 	 
	 	 	Title:  	 	 
	 	 	 
	 	By:  	/s/ Maurice L. Wijmans
 	 
	 	 	Name:  	Maurice L. Wijmans 	 
	 	 	Title:  	 	 
	 
	 	THE GOVERNOR AND COMPANY OF THE BANK OF

SCOTLAND, as Lender

 	 
	 	By:  	/s/ Alasdair Weir
 	 
	 	 	Name:  	Alasdair Weir 	 
	 	 	Title:  	Director 	 



2









 






	 	 	 	 	 



	 	 	 	 	 
	 	BAYERISCHE HYPO-UND VEREINSBANK

AKTIENGESELLSCHAFT, as Lender

 	 
	 	By:  	/s/ Somitsch
 	 
	 	 	Name:  	Somitsch 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	/s/ Grotheer-Isecke
 	 
	 	 	Name:  	Grotheer-Isecke 	 
	 	 	Title:  	 	 
	 




3