NINTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.9
EXECUTION COPY
NINTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS NINTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Waiver”), dated as of March 15, 2010, by and among TRICO MARINE SERVICES, INC., a Delaware
corporation (the “Borrower”), TRICO MARINE ASSETS INC., a Delaware corporation (“Trico
Assets”), as a Guarantor, and TRICO MARINE OPERATORS, INC., a Louisiana corporation (“Trico
Operators”), as a Guarantor, the Lenders party hereto (each, a “Lender” and,
collectively, the “Lenders”) and NORDEA BANK FINLAND PLC, NEW YORK BRANCH, as
Administrative Agent (in such capacity, the “Administrative Agent”). Unless otherwise
indicated, all capitalized terms used herein and not otherwise defined shall have the respective
meanings provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, Trico Assets, Trico Operators, the Lenders from time to time party
thereto, and the Administrative Agent are parties to an Amended and Restated Credit Agreement,
dated as of August 29, 2008, and amended by (i) the First Amendment to Credit Agreement, dated as
of Xxxxx 00, 0000, (xx) the Second Amendment to Credit Agreement dated as of May 8, 2009, (iii) the
Third Amendment to Credit Agreement dated as of May 14, 2009, (iv) the Fourth Amendment and Consent
to Credit Agreement dated as of July 31, 2009, (v) the Fifth Amendment to Credit Agreement dated as
of August 5, 2009, (vi) the Sixth Amendment to Credit Agreement dated as of October 30, 2009, (vii)
the Seventh Amendment to Credit Agreement dated as of December 22, 2009 and (viii) the Eighth
Amendment to Credit Agreement dated as of January 15, 2010 (the “Credit Agreement”); and
WHEREAS, subject to the terms and conditions set forth below, the parties hereto wish to
provide a waiver in respect of Section 9.01(b) of the Credit Agreement as provided herein;
NOW, THEREFORE, it is agreed;
A. Waiver to the Credit Agreement
1. Notwithstanding anything to the contrary contained in Section 9.01(b) of the
Credit Agreement, each of the undersigned Lenders hereby waives any Default or Event of
Default arising from the fact that the annual financial statements of the Borrower
delivered pursuant to Section 9.01(b) of the Credit Agreement were not certified on an
unqualified basis in regards to going concern for the fiscal year ending December 31,
2009.
B. Amendment to the Credit Agreement
1. The definition of “Total Available Commitment” appearing in Section 1
of the Credit Agreement is hereby amended by deleting the text “$15,000,000” appearing
in said definition and inserting the text “$14,792,185” in lieu thereof.
C. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this Waiver, the Borrower hereby represents
and warrants that (i) no Default or Event of Default exists as of the Waiver Effective Date (as
defined herein) before or after giving effect to this Waiver and (ii) all of the representations
and warranties contained in the Credit Agreement or the other Credit Documents are true and correct
in all material respects on the Waiver Effective Date both before and after giving effect to this
Waiver, with the same effect as though such representations and warranties had been made on and as
of the Waiver Effective Date (it being understood that any representation or warranty made as of a
specific date shall be true and correct in all material respects as of such specific date).
2. This Waiver is limited as specified and shall not constitute an amendment, modification,
acceptance or waiver of any other provision of the Credit Agreement or any other Credit Document.
3. This Waiver may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
4. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.
5. This Waiver shall become effective on the date (the “Waiver Effective Date”) when
the Borrower, the Guarantors and the Required Lenders shall have signed a counterpart hereof
(including by way of facsimile or other electronic transmission) the same to White & Case LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000; Attention: May Yip (facsimile number: 000-000-0000 /
email: xxxx@xxxxxxxxx.xxx).
6. From and after the Waiver Effective Date, all references in the Credit Agreement and each
of the other Credit Documents to the Credit Agreement shall be deemed to be references to the
Credit Agreement, as modified hereby.
7. The Borrower and each Guarantor as debtor, grantor, pledgor or assignor, or in any other
similar capacity in which the Borrower or the Guarantors grant liens or security interests in their
respective property or otherwise act as accommodation party or guarantor, as the case may be,
hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or
otherwise, under each of the Credit Documents to which it is a party (after giving effect hereto)
and (ii) to the extent the Borrower or any Guarantor granted liens on or security interests in any
of its property pursuant to any such Credit Document as security for the Borrower or any
Guarantor’s Obligations under or with respect to the Credit Documents, ratifies and reaffirms such
guarantee and grants of security interests and liens and confirms and agrees that such security
interests and liens hereafter secure all of the Obligations as amended hereby. The Borrower and
each Guarantor hereby consents to this Waiver and acknowledges that each of the Credit Documents
remains in full force and effect and is hereby ratified and reaffirmed.
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Except as otherwise provided herein, the execution of this Waiver shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or the Lenders, constitute a
waiver of any provision of any of the Credit Documents or serve to effect a novation of the
Obligations.
* * *
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IN WITNESS WHEREOF, the undersigned have caused this Waiver to be duly executed and
delivered as of the date first above written.
| TRICO MARINE SERVICES, INC. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior Vice President
and Chief Operations Officer |
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| TRICO MARINE ASSETS INC. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| TRICO
MARINE OPERATORS, INC. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President | |||
Signature
page to Trico $50mm Waiver
NORDEA BANK FINLAND PLC, NEW YORK BRANCH, as Administrative Agent
|
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Vice President | |||
Signature page to Trico $50mm Waiver
| SIGNATURE PAGE TO THE WAIVER TO CREDIT AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE, AMONG TRICO MARINE SERVICES, INC., TRICO MARINE ASSETS INC., TRICO MARINE OPERATORS, INC., VARIOUS FINANCIAL INSTITUTIONS AND NORDEA BANK FINLAND PLC, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: UNICREDIT BANK AG (f/k/a BAYERISCHE HYPO- UND VEREINSBANK), as a Lender, |
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By:
|
/s/ Xxxxxxx Xxx | /s/ Xxxxxxxxx Xxxxxx | |||||
| Name: Xxxxxxx Xxx | Xxxxxxxxx Xxxxxx | ||||||
| Title: Vice President | Vice President | ||||||
Signature page to Trico $50mm Waiver
| SIGNATURE PAGE TO THE WAIVER TO CREDIT AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE, AMONG TRICO MARINE SERVICES, INC., TRICO MARINE ASSETS INC., TRICO MARINE OPERATORS, INC., VARIOUS FINANCIAL INSTITUTIONS AND NORDEA BANK FINLAND PLC, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: NORDEA BANK NORGE ASA, CAYMAN ISLANDS BRANCH, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Vice President | |||
Signature
Page to Trico $50mm CA Waiver
