SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 14, 1997
TRICO MARINE SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-28316 72-1252405
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
250 North American Court, Houma, Louisiana 70363
(Address of principal executive offices) (Zip Code)
(504) 851-3833
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
Item 5. Other Events
On November 14, 1997, Trico Marine Services, Inc. (the
"Company") completed the private placement of $100,000,000 of the
Company's 8 1/2% Senior Notes due 2005, Series C (the "Notes").
The Notes are jointly and severally guaranteed by the Company's
principal operating subsidiaries. The Company received net
proceeds from the sale of the Notes of approximately $99.0
million. The Company intends to use the net proceeds from the
offering to finance a portion of the acquisition of Saevik Supply
AS, a publicly-traded Norwegian company ("Seavik Supply").
The Company has made a public bid for all the outstanding
common stock of Saevik Supply, which will terminate on November
25, 1997, unless extended. The Company's bid for Saevik Supply is
subject to several conditions, including the condition that at
least 90% of the outstanding stock of Saevik Supply be tendered
in the Company's public bid. If the Company does not complete the
acquisition of Saevik Supply, it will use the net proceeds of the
offering to fund future acquisitions of marine vessels or other
companies engaged in the provision of marine support vessels and
related services. The Company does not currently have any
contracts, understandings or arrangements with respect to any
material acquisitions other than the acquisition of Saevik Supply.
The Notes have not been registered under the Securities Act
of 1933 and may not be offered or sold in the United States
absent registration or an applicable exemption from the
registration requirements thereunder. The holders of the Notes
are entitled to certain registration rights, pursuant to a
registration rights agreement which provides that the Company
will (a) within 60 days, file a registration statement with the
Securities and Exchange Commission (the "Commission") with
respect to an offer to exchange (the "Exchange Offer") the Notes
for the Company's 8 1/2 % Senior Notes due 2005, Series D, which
will have terms identical in all material respects to the Notes,
and (b) use its best efforts to cause the registration statement
to be declared effective within 120 days. Under certain
circumstances, the Company will file with the Commission a shelf
registration statement to cover resales of the 8 1/2 % Senior
Notes due 2005, Series D, by holders thereof.
Item 7.Financial Statements and Exhibits.
(a) Not applicable.
(b) Exhibits
4.1 Indenture dated November 14, 1997, among the
Company, Trico Marine Operators, Inc., Trico
Marine Assets, Inc. and Texas Commerce Bank
National Association, as Trustee.
10.1 Registration Rights Agreement dated November 14,
1997 among the Company, Trico Marine Operators,
Inc., Trico Marine Assets, Inc. and Jefferies &
Company, Inc., Bear, Stearns & Co. Inc. and
BancBoston Securities Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
Victor M. Perez
Vice President, Chief Financial
Officer and Treasurer
Dated: November 19, 1997
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered
Pages
4.1 Indenture dated November 14, 1997 among the
Company, Trico Marine Operators, Inc., Trico
Marine Assets, Inc. and Texas Commerce Bank
National Association, as Trustee. Certain exhibits
have been intentionally omitted and will be provided
upon the Commission's request.
4.2 Form of Note and Subsidiary Guarantee
10.1 Registration Rights Agreement dated November 14,
1997 among the Company, Trico Marine Operators,
Inc., Trico Marine Assets, Inc. and Jefferies &
Company, Inc., Bear Stearns & Co. Inc. and
BancBoston Securities, Inc.
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
Series C and Series D
8 1/2% Senior Notes due 2005
INDENTURE
Dated as of November 14, 1997
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N/A
(a)(4) N/A
(a)(5) 7.10
(b) 7.10
(c) N/A
311(a) 7.11
(b) 7.11
(c) N/A
312(a) 2.05
(b) 11.03
(c) 11.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06, 7.07
(c) 7.06, 11.02
(d) 7.06
314(a) 4.03, 11.02
(b) N/A
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N/A
(d) N/A
(e) 11.05
(f) N/A
315(a) 7.01
(b) 7.05, 11.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N/A
(b) 6.07
(c) 2.12
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 11.01
(b) N/A
(c) 11.01
N/A means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.Definitions...................................1
Section 1.02.Other Definitions............................16
Section 1.03.Incorporation by Reference of Trust Indenture
Act.............................................17
Section 1.04.Rules of Construction........................17
ARTICLE 2
THE NOTES
Section 2.01.Form and Dating..............................17
Section 2.02.Execution and Authentication.................19
Section 2.03.Registrar and Paying Agent...................20
Section 2.04.Paying Agent to Hold Money in Trust..........20
Section 2.05.Holder Lists.................................21
Section 2.06.Transfer and Exchange........................21
Section 2.07.Replacement Notes............................28
Section 2.08.Outstanding Notes............................29
Section 2.09.Treasury Notes...............................29
Section 2.10.Temporary Notes..............................30
Section 2.11.Cancellation.................................30
Section 2.12.Defaulted Interest...........................30
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01.Notices to Trustee...........................30
Section 3.02.Selection of Notes to Be Redeemed............31
Section 3.03.Notice of Redemption.........................31
Section 3.04.Effect of Notice of Redemption...............32
Section 3.05.Deposit of Redemption Price..................32
Section 3.06.Notes Redeemed in Part.......................33
Section 3.07.Optional Redemption..........................33
Section 3.08.Mandatory Redemption.........................33
Section 3.09.Offer to Purchase by Application of Excess
Proceeds........................................33
ARTICLE 4
COVENANTS
Section 4.01.Payment of Notes.............................35
Section 4.02.Maintenance of Office or Agency..............36
Section 4.03.Reports......................................36
Section 4.04.Compliance Certificate.......................36
Section 4.05.Taxes........................................37
Section 4.06.Stay, Extension and Usury Laws...............37
Section 4.07.Restricted Payments..........................38
Section 4.08.Dividend and Other Payment Restrictions
Affecting Subsidiaries..........................40
Section 4.09.Incurrence of Indebtedness and Issuance of
Preferred Stock.................................40
Section 4.10.Asset Sales..................................42
Section 4.11.Transactions with Affiliates.................43
Section 4.12.Liens........................................44
Section 4.13.Additional Subsidiary Guarantees.............44
Section 4.14.Corporate Existence..........................44
Section 4.15.Offer to Repurchase Upon Change of Control...44
Section 4.16.Issuances and Sales of Capital Stock of Wholly
Owned Restricted Subsidiaries...................46
Section 4.17.Sale-and-leaseback Transactions..............46
Section 4.18.No Inducements...............................46
ARTICLE 5
SUCCESSORS
Section 5.01.Merger, Consolidation, or Sale of Assets.....47
Section 5.02.Successor Corporation Substituted............47
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01.Events of Default............................48
Section 6.02.Acceleration.................................49
Section 6.03.Other Remedies...............................50
Section 6.04.Waiver of Past Defaults......................50
Section 6.05.Control by Majority..........................50
Section 6.06.Limitation on Suits..........................51
Section 6.07.Rights of Holders of Notes to Receive Payment51
Section 6.08.Collection Suit by Trustee...................51
Section 6.09.Trustee May File Proofs of Claim.............52
Section 6.10.Priorities...................................52
Section 6.11.Undertaking for Costs........................53
ARTICLE 7
TRUSTEE
Section 7.01.Duties of Trustee............................53
Section 7.02.Rights of Trustee............................54
Section 7.03.Individual Rights of Trustee.................55
Section 7.04.Trustee's Disclaimer.........................55
Section 7.05.Notice of Defaults...........................55
Section 7.06.Reports by Trustee to Holders of the Notes...55
Section 7.07.Compensation and Indemnity...................56
Section 7.08.Replacement of Trustee.......................56
Section 7.09.Successor Trustee by Merger, etc.............57
Section 7.10.Eligibility; Disqualification................58
Section 7.11.Preferential Collection of Claims Against
Company.........................................58
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01.Option to Effect Legal Defeasance or Covenant
Defeasance......................................58
Section 8.02.Legal Defeasance and Discharge...............58
Section 8.03.Covenant Defeasance..........................59
Section 8.04.Conditions to Legal or Covenant Defeasance...59
Section 8.05.Deposited Money and Government Securities to be
Held in
Trust; Other Miscellaneous Provisions...........60
Section 8.06.Repayment to Company.........................61
Section 8.07.Reinstatement................................61
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01.Without Consent of Holders of Notes..........62
Section 9.02.With Consent of Holders of Notes.............62
Section 9.03.Compliance with Trust Indenture Act..........64
Section 9.04.Revocation and Effect of Consents............64
Section 9.05.Notation on or Exchange of Notes.............64
Section 9.06.Trustee to Sign Amendments, etc..............64
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01.Subsidiary Guarantee........................65
Section 10.02.Execution and Delivery of Subsidiary Guarantee
66
Section 10.03.Guarantors May Consolidate, etc., on Certain
Terms...........................................66
Section 10.04.Releases Following Sale of Assets...........67
Section 10.05.Releases Following Designation as an
Unrestricted Subsidiary..............................67
Section 10.06.Limitation on Guarantor Liability...........68
Section 10.07."Trustee" to Include Paying Agent...........68
ARTICLE 11
MISCELLANEOUS
Section 11.01.Trust Indenture Act Controls................68
Section 11.02.Notices.....................................68
Section 11.03.Communication by Holders of Notes with Other
Holders of Notes................................70
Section 11.04.Certificate and Opinion as to Conditions
Precedent.......................................70
Section 11.05.Statements Required in Certificate or Opinion
71
Section 11.06.Rules by Trustee and Agents.................71
Section 11.07.No Personal Liability of Directors, Officers,
Employees
and Stockholders................................71
Section 11.08.Governing Law...............................72
Section 11.09.No Adverse Interpretation of Other Agreements
72
Section 11.10.Successors..................................72
Section 11.11.Severability................................72
Section 11.12.Counterpart Originals.......................72
Section 11.13.Table of Contents, Headings, etc............72
EXHIBITS
EXHIBIT A-1 Form of Note.....................................A-1-1
EXHIBIT A-2 Form Regulation S Temporary Global Note..........A-2-1
EXHIBIT B-1 Certificate of Transferor from 144A Global Note to
Regulation S
Global Note......................................B-1-1
EXHIBIT B-2 Certificate of Transferor from Regulation S Global
Note to 144A
Global Note......................................B-2-1
EXHIBIT B-3 Certificate of Transferor of Definitive Notes....B-3-1
EXHIBIT B-4 Certificate of Transferor from Global Note to
Definitive Note.................................B-4-1
EXHIBIT C Certificate of Institutional Accredited Investor.. C-1
EXHIBIT D Form of Subsidiary Guarantee...................... D-1
EXHIBIT E Form of Supplemental Indenture................... E-1
-i-
This Indenture, dated as of November 14, 1997 is among Trico
Marine Services, Inc., a Delaware corporation (the "Company"),
the guarantors listed on the signature page hereto (each, a
"Guarantor" and, collectively, the "Guarantors") and Texas
Commerce Bank National Association, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable
benefit of the Holders of the 8 1/2% Senior Notes due 2005,
Series C (the "Series C Notes") and the 8 1/2% Senior Notes due
2005, Series D (the "Series D Notes" and, together with the
Series C Notes, the "Notes"), without preference of one series of
Notes over the other:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01.Definitions.
"144A Global Note" means a permanent global senior note that
contains the paragraph referred to in footnote 1 and the
additional schedule referred to in footnote 3 to the form of the
Note attached hereto as Exhibit A-1, and that is deposited with
the Note Custodian and registered in the name of the Depository
or its nominee, representing a series of Notes sold in reliance
on Rule 144A or another exemption from the registration
requirements of the Securities Act, other than Regulation S.
"Affiliate" of any specified Person means an "affiliate" of
such Person, as such term is defined for purposes of Rule 144
under the Securities Act.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer
or exchange of beneficial interests in a Global Note, the rules
and procedures of the Depository that apply to such transfer and
exchange.
"Asset Sale" means (a) the sale, lease, conveyance or other
disposition (a "disposition") of any assets or rights (including,
without limitation, by way of a sale and leaseback), excluding
dispositions in the ordinary course of business (provided that
the disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be
governed by Sections 4.15 and/or 5.01 of this Indenture and not
by the provisions of Section 4.10 hereof), (b) the issue or sale
by the Company or any of its Restricted Subsidiaries of Equity
Interests of any of the Company's Subsidiaries, and (c) any Event
of Loss, whether in the case of clause (a), (b) or (c), in a
single transaction or a series of related transactions, provided
that such transaction or series of transactions (i) has a fair
market value in excess of $1.0 million or (ii) results in the
payment of net proceeds in excess of $1.0 million.
Notwithstanding the foregoing, the following transactions will be
deemed not to be Asset Sales: (A) a disposition of obsolete or
excess equipment or other assets; (B) a disposition of assets by
the Company to a Wholly Owned Restricted Subsidiary or by a
Wholly Owned Restricted Subsidiary to the Company or to another
Wholly Owned Restricted Subsidiary; (C) a disposition of Equity
Interests by a Wholly Owned Restricted Subsidiary to the Company
or to another Wholly Owned Restricted Subsidiary; (D) a Permitted
Investment or Restricted Payment that is permitted by this
Indenture; (E) a disposition of assets by the Company or any of
its Restricted Subsidiaries to a Person that is an Affiliate of
the Company or such Restricted Subsidiary and is engaged in the
business of providing marine support vessels and related services
to the oil and gas industry (or a business that is reasonably
complementary or related thereto as determined in good faith by
the Board of Directors), which Person is an Affiliate solely
because the Company or such Restricted Subsidiary has an
Investment in such Person, provided that such transaction
complies with Section 4.11 hereof; (F) any charter or lease of
any equipment or other assets entered into in the ordinary course
of business and with respect to which the Company or any
Restricted Subsidiary thereof is the lessor, except any such
charter or lease that provides for the acquisition of such assets
by the lessee during or at the end of the term thereof for an
amount that is less than the fair market value thereof at the
time the right to acquire such assets occurs; and (G) any trade
or exchange by the Company or any Restricted Subsidiary of
equipment or other assets for equipment or other assets owned or
held by another Person, provided that the fair market value of
the assets traded or exchanged by the Company or such Restricted
Subsidiary (together with any cash or Cash Equivalents) is
reasonably equivalent to the fair market value of the assets
(together with any cash or Cash Equivalents) to be received by
the Company or such Restricted Subsidiary. The fair market value
of any non-cash proceeds of a disposition of assets and of any
assets referred to in the foregoing clause (G) of this definition
shall be determined in the manner contemplated in the definition
of the term "fair market value," the results of which
determination shall be set forth in an Officers' Certificate
delivered to the Trustee.
"Attributable Indebtedness" in respect of a sale-and-
leaseback transaction means, at the time of determination, the
present value (discounted at the rate of interest implicit in
such transaction, determined in accordance with GAAP) of the
obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale-and-lease-back
transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). As
used in the preceding sentence, the "net rental payments" under
any lease for any such period shall mean the sum of rental and
other payments required to be paid with respect to such period by
the lessee thereunder, excluding any amounts required to be paid
by such lessee on account of maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges. In the case
of any lease that is terminable by the lessee upon payment of
penalty, such net rental payment shall also include the amount of
such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it
may be so terminated.
"Bankruptcy Law" means Title 11, United States Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required
to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation,
corporate stock, (b) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, (c) in
the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited)
and (d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) United States dollars, (b)
securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality
thereof having maturities of not more than six months from the
date of acquisition, (c) certificates of deposit and Eurodollar
time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case
with any commercial bank organized under the laws of any country
that is a member of the Organization for Economic Cooperation and
Development having capital and surplus in excess of $500 million,
(d) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses
(b) and (c) above entered into with any financial institution
meeting the qualifications specified in clause (c) above, (e)
commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Rating
Service and in each case maturing within 270 days after the date
of acquisition, (f) deposits available for withdrawal on demand
with any commercial bank not meeting the qualifications specified
in clause (c) above, provided all such deposits do not exceed
$2.0 million in the aggregate at any one time, and (g) money
market mutual funds substantially all of the assets of which are
of the type described in the foregoing clauses (a) through (e).
"Cedel" means Cedel bank, societe anonyme.
"Change of Control" means the occurrence of any of the
following: (a) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially
all of the assets of the Company and its Subsidiaries, taken as a
whole, (b) the adoption of a plan relating to the liquidation or
dissolution of the Company, (c) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as such
term is used in Section 13(d)(3) of the Exchange Act) becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly
through one or more intermediaries, of more than 50% of the
voting power of the outstanding voting stock of the Company or
(d) the first day on which more than a majority of the members of
the Board of Directors are not Continuing Directors; provided,
however, that a transaction in which the Company becomes a
Subsidiary of another Person (other than a Person that is an
individual) shall not constitute a Change of Control if (i) the
stockholders of the Company immediately prior to such transaction
"beneficially own" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly
through one or more intermediaries, at least a majority of the
voting power of the outstanding voting stock of the Company
immediately following the consummation of such transaction and
(ii) immediately following the consummation of such transaction,
no "person" (as such term is defined above), other than such
other Person (but including the holders of the Equity Interests
of such other Person), "beneficially owns" (as such term is
defined above), directly or indirectly through one or more
intermediaries, more than 50% of the voting power of the
outstanding voting stock of the Company. For purposes of this
definition, a time charter of vessels to customers in the
ordinary course of business shall not be deemed to be a "lease"
under clause (a) above.
"Common Stock" means the common stock of the Company, par
value $0.01 per share.
"Consolidated Cash Flow" means, with respect to any Person
for any period, the Consolidated Net Income of such Person for
such period plus, to the extent deducted or excluded in
calculating Consolidated Net Income for such period, (a) an
amount equal to any extraordinary loss plus any net loss realized
in connection with an Asset Sale, (b) provision for taxes based
on income or profits of such Person and its Restricted
Subsidiaries, (c) Consolidated Interest Expense of such Person
and its Restricted Subsidiaries, and (d) depreciation and
amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) of such Person and its
Restricted Subsidiaries, in each case, on a consolidated basis
and determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to
any Person for any period, the ratio of the Consolidated Cash
Flow of such Person for such period to the Consolidated Interest
Expense of such Person for such period; provided, however, that
the Consolidated Interest Coverage Ratio shall be calculated
giving pro forma effect to each of the following transactions as
if each such transaction had occurred at the beginning of the
applicable four-quarter reference period: (a) any incurrence,
assumption, guarantee or redemption by the Company or any of its
Restricted Subsidiaries of any Indebtedness (other than revolving
credit borrowings) subsequent to the commencement of the period
for which the Consolidated Interest Coverage Ratio is being
calculated but prior to the date on which the event for which the
calculation of the Consolidated Interest Coverage Ratio is made
(the "Calculation Date"); (b) any acquisition that has been made
by the Company or any of its Restricted Subsidiaries, or approved
and expected to be consummated within 30 days of the Calculation
Date, including, in each case, through a merger or consolidation,
and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date (in which case
Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (c) of the proviso set
forth in the definition of Consolidated Net Income); and (c) any
other transaction that may be given pro forma effect in
accordance with Article 11 of Regulation S-X as in effect from
time to time; provided, further, however, that (i) the
Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be
excluded and (ii) the Consolidated Interest Expense attributable
to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Consolidated Interest Expense
will not be obligations of the referent Person or any of its
Restricted Subsidiaries following the Calculation Date.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum, without duplication, of (a) the
consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of original issue discount, non-
cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts
and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net payments (if
any) pursuant to Hedging Obligations but excluding amortization
of debt issuance costs) and (b) the consolidated interest expense
of such Person and its Restricted Subsidiaries that was
capitalized during such period.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP, provided
that (a) the Net Income (but not loss) of any Person that is not
a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the referent
Person or a Wholly Owned Restricted Subsidiary thereof, (b) the
Net Income of any Restricted Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly
or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its
stockholders, (c) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded and (d) the cumulative
effect of a change in accounting principles shall be excluded.
"Consolidated Net Tangible Assets" means, with respect to
any Person as of any date, the sum of the amounts that would
appear on a consolidated balance sheet of such Person and its
consolidated Restricted Subsidiaries as the total assets of such
Person and its consolidated Restricted Subsidiaries, determined
on a consolidated basis in accordance with GAAP and after
deducting therefrom, (a) to the extent otherwise included,
unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, licenses, organization or development
expenses and other intangible items and (b) the aggregate amount
of liabilities of the Company and its Restricted Subsidiaries
which may be properly classified as current liabilities
(including tax accrued as estimated), determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, with respect to any Person
as of any date, the sum of (a) the consolidated equity of the
common stockholders of such Person and its consolidated
Restricted Subsidiaries as of such date plus (b) the respective
amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and
paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock,
less (i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of
a going concern business made within 12 months after the
acquisition of such business) subsequent to the Series A/B Issue
Date in the book value of any asset owned by such Person or a
consolidated Restricted Subsidiary of such Person, (ii) all
investments as of such date in unconsolidated Subsidiaries and in
Persons that are not Restricted Subsidiaries and (iii) all
unamortized debt discount and expense and unamortized deferred
charges as of such date, in each case determined in accordance
with GAAP.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors who (a) was a
member of the Board of Directors on the Series A/B Issue Date or
(b) was nominated for election to the Board of Directors with the
approval of, or whose election to the Board of Directors was
ratified by, at least two-thirds of the Continuing Directors who
were members of the Board of Directors at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof or such
other address as to which the Trustee may give notice to the
Company.
"Credit Facility" means that certain Revolving Credit
Agreement, dated as of July 26, 1996, as amended, by and among
the Company, its Subsidiaries named therein, BankBoston, N.A.,
Hibernia National Bank and First National Bank of Commerce,
including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, in
each case as amended, restated, modified, supplemented, extended,
renewed, replaced, refinanced or restructured from time to time,
whether by the same or any other agent or agents, lender or group
of lenders, whether represented by one or more agreements and
whether one or more Subsidiaries are added or removed as
borrowers or guarantors thereunder or as parties thereto.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy
Law.
"Default" means any event that is or with the passage of
time or the giving of notice or both would be an Event of
Default.
"Definitive Notes" means Notes that are in the form of
Exhibit A-1 attached hereto (but without including the text
referred to in footnotes 1 and 3 thereto).
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified
in Section 2.03 hereof as the Depository with respect to the
Notes, until a successor shall have been appointed and become
such pursuant to the applicable provision of this Indenture, and,
thereafter, "Depository" shall mean or include such successor.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the
happening of any event, matures (excluding any maturity as a
result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 91 days after
the date on which the Notes mature or are redeemed or retired in
full; provided, however, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof
(or of any security into which it is convertible or for which it
is exchangeable) have the right to require the issuer to
repurchase such Capital Stock (or such security into which it is
convertible or for which it is exchangeable) upon the occurrence
of any of the events constituting an Asset Sale or a Change of
Control shall not constitute Disqualified Stock if such Capital
Stock (and all such securities into which it is convertible or
for which it is exchangeable) provides that the issuer thereof
will not repurchase or redeem any such Capital Stock (or any such
security into which it is convertible or for
which it is exchangeable) pursuant to such provisions prior to
compliance by the Company with Section 4.10 or 4.15 of this
Indenture, as the case may be.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable for,
Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Event of Loss" means, with respect to any property or asset
of the Company or any Restricted Subsidiary, (a) any damage to
such property or asset that results in an insurance settlement
with respect thereto on the basis of a total loss or a
constructive or compromised total loss or (b) the confiscation,
condemnation or requisition of title to such property or asset by
any government or instrumentality or agency thereof. An Event of
Loss shall be deemed to occur as of the date of the insurance
settlement, confiscation, condemnation or requisition of title,
as applicable.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange
Series D Notes for Series C Notes.
"Existing Indebtedness" means Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under
the Credit Facility) in existence on the Series A/B Issue Date,
until such amounts are repaid.
The term "fair market value" means, with respect to any
asset or Investment, the fair market value of such asset or
Investment at the time of the event requiring such determination,
as determined in good faith by the Board of Directors of the
Company, or, with respect to any asset or Investment in excess of
$5.0 million (other than cash or Cash Equivalents), as determined
by a reputable appraisal firm that is, in the judgment of such
Board of Directors, qualified to perform the task for which such
firm has been engaged and independent with respect to the
Company.
"Funded Indebtedness" means any Indebtedness for money
borrowed that by its terms matures at, or is extendible or
renewable at the option of the obligor to, a date more than 12
months after the date of the incurrence of such Indebtedness.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect from time to time.
"Global Note" means, individually and collectively, the
Regulation S Temporary Global Note, the Regulation S Permanent
Global Note and the 144A Global Note.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
"Guarantor" means (a) each Restricted Subsidiary of the
Company named on the signature page hereto, (b) any other
Restricted Subsidiary of the Company that executes a Subsidiary
Guarantee in accordance with Sections 4.13 and 10.02 hereof and
(c) the respective successors and assigns of such Restricted
Subsidiaries, as required under Article 10 hereof, in each case
until such time as any such Restricted Subsidiary shall be
released and relieved of its obligations pursuant to
Section 10.04 or 10.05 hereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap
agreements, interest rate cap agreements and interest rate collar
agreements, (b) other agreements or arrangements designed to
protect such Person against fluctuations in interest rates and
(c) any foreign currency futures contract, option or similar
agreement or arrangement designed to protect such Person against
fluctuations in foreign currency rates, in each case to the
extent such obligations are incurred in the ordinary course of
business of such Person.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in
respect of borrowed money or evidenced by bonds, debentures,
notes or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the
balance deferred and unpaid of the purchase price of any property
or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters
of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with
GAAP. The amount of any Indebtedness outstanding as of any date
shall be (a) the accreted value thereof, in the case of any
Indebtedness that does not require current payments of interest,
and (b) the principal amount thereof, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Indirect Participant" means a Person who holds an interest
through a Participant.
"Initial Purchasers" means Jefferies & Company, Inc., Bear,
Stearns & Co. Inc. and BancBoston Securities Inc.
"Institutional Accredited Investor" means an "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the forms of direct or indirect loans (including
guarantees by the referent Person of, and Liens on any assets of
the referent Person securing, Indebtedness or other obligations
of other Persons), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests
or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in
accordance with GAAP; provided, however, that the following shall
not constitute Investments: (i) extensions of trade credit or
other advances to customers on commercially reasonable terms in
accordance with normal trade practices or otherwise in the
ordinary course of business, (ii) Hedging Obligations and
(iii) endorsements of negotiable instruments and documents in the
ordinary course of business. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07 of this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of Houston, Texas, the City of
New York or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction other than a
precautionary financing statement respecting a lease not intended
as a security agreement).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Make-Whole Amount" with respect to a Note means an amount
equal to the excess, if any, of (i) the present value of the
remaining interest, premium and principal payments due on such
Note as if such Note were redeemed on August 1, 2001, computed
using a discount rate equal to the Treasury Rate plus 50 basis
points, over (ii) the outstanding principal amount of such Note.
"Treasury Rate" is defined as the yield to maturity at the time
of the computation of United States Treasury securities with a
constant maturity (as compiled by and published in the most
recent Federal Reserve Statistical Release H.15(519), which has
become publicly available at least two Business Days prior to the
date of the redemption notice or, if such Statistical Release is
no longer published, any publicly available source of similar
market date) most nearly equal to the then remaining maturity of
the Notes assuming redemption of the Notes on August 1, 2001;
provided, however, that if the Make-Whole Average Life of such
Note is not equal to the constant maturity of the United States
Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which
such yields are given, except that if the Make-Whole Average Life
of such Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used. "Make-Whole Average
Life" means the number of years (calculated to the nearest one-
twelfth) between the date of redemption and August 1, 2001.
"Make-Whole Price" with respect to a Note means the greater
of (i) the sum of the outstanding principal amount and Make-Whole
Amount of such Note, and (ii) the redemption price of such Note
on August 1, 2001, determined pursuant to the Indenture (104.250%
of the principal amount).
"Net Income" means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends,
excluding, however, (a) any gain (but not loss), together with
any related provision for taxes on such gain (but not loss),
realized in connection with (i) any Asset Sale (including,
without limitation, dispositions pursuant to sale-and-leaseback
transactions) or (ii) the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries and (b) any extraordinary or nonrecurring
gain (but not loss), together with any related provision for
taxes on such extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of
any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of (without duplication) (a) the
direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, sales
commissions, recording fees, title transfer fees, title insurance
premiums, appraiser fees and costs incurred in connection with
preparing such asset for sale) and any relocation expenses
incurred as a result thereof, (b) taxes paid or estimated to be
payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing
arrangements), (c) amounts required to be applied to the
repayment of Indebtedness (other than under the Credit Facility)
secured by a Lien on the asset or assets that were the subject of
such Asset Sale and (d) any reserve established in accordance
with GAAP or any amount placed in escrow, in either case for
adjustment in respect of the sale price of such asset or assets,
until such time as such reserve is reversed or such escrow
arrangement is terminated, in which case Net Proceeds shall
include only the amount of the reserve so reserved or the amount
returned to the Company or its Restricted Subsidiaries from such
escrow arrangement, as the case may be.
"Non-Recourse Debt" means Indebtedness (a) as to which
neither the Company nor any of its Restricted Subsidiaries (i)
provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) or is
otherwise directly or indirectly liable (as a guarantor or
otherwise) or (ii) constitutes the lender, (b) no default with
respect to which (including any rights that the holders thereof
may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) the
holders of Indebtedness of the Company or any of its Restricted
Subsidiaries to declare a default on such Indebtedness or cause
the payment thereof to be accelerated or payable prior to its
stated maturity and (c) as to which the lenders have been
notified in writing that they will not have any recourse to the
stock or assets of the Company or any of its Restricted
Subsidiaries, except to the extent of any Indebtedness incurred
by the Company or any of its Restricted Subsidiaries in
accordance with clause (a)(i) above.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must
be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the
requirements of Section 11.05 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.
"Pari Passu Indebtedness" means, with respect to any Net
Proceeds from Asset Sales, Indebtedness of the Company and its
Restricted Subsidiaries the terms of which require the Company or
such Restricted Subsidiary to apply such Net Proceeds to offer to
repurchase such Indebtedness.
"Participant" means with respect to DTC, Euroclear or Cedel,
a Person who has an account with DTC, Euroclear or Cedel,
respectively (and, with respect to DTC, shall include Euroclear
and Cedel).
"Permitted Investments" means (a) any Investment in the
Company or in a Wholly Owned Restricted Subsidiary of the
Company, (b) any Investment in Cash Equivalents, (c) any
Investment by the Company or any Restricted Subsidiary of the
Company in a Person if as a result of such Investment (i) such
Person becomes a Wholly Owned Restricted Subsidiary of the
Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys all or
substantially all of its assets to, or is liquidated into, the
Company or a Wholly Owned Restricted Subsidiary of the Company,
(d) any Investment made as a result of the receipt of non-cash
consideration from (i) an Asset Sale that was made pursuant to
and in compliance with Section 4.10 hereof or (ii) a disposition
of assets that does not constitute an Asset Sale, and
(e) Investments in a Person engaged principally in the business
of providing marine support vessels and related services to the
oil and gas industry or businesses reasonably complementary or
related thereto provided that the aggregate amount of such
Investments pursuant to this clause (e) in Persons that are not
Restricted Subsidiaries of the Company shall not exceed $20.0
million at any one time.
"Permitted Liens" means (a) Liens securing Indebtedness
incurred pursuant to clause (a) of the second paragraph of
Section 4.09 hereof plus additional Indebtedness under the Credit
Facility not to exceed an amount equal to 15% of Consolidated
Net Tangible Assets, (b) Liens in favor of the Company and its
Restricted Subsidiaries, (c) Liens on property of a Person
existing at the time such Person is merged into or consolidated
with the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend
to any property other than those of the Person merged into or
consolidated with the Company or any of its Restricted
Subsidiaries, (d) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary
of the Company, provided that such Liens were in existence prior
to the contemplation of such acquisition and do not extend to any
other property, (e) Liens to secure the performance of statutory
obligations, surety or appeal bonds, bid or performance bonds,
insurance obligations or other obligations of a like nature
incurred in the ordinary course of business, (f) Liens securing
Hedging Obligations, (g) Liens existing on the Series A/B Issue
Date, (h) Liens securing Non-Recourse Debt, (i) any interest or
title of a lessor under a Capital Lease Obligation or an
operating lease, (j) Liens arising by reason of deposits
necessary to obtain standby letters of credit in the ordinary
course of business, (k) Liens on real or personal property or
assets of the Company or a Restricted Subsidiary thereof to
secure Indebtedness incurred for the purpose of (i) financing all
or any part of the purchase price of such property or assets
incurred prior to, at the time of, or within 120 days after, the
acquisition of such property or assets or (ii) financing all or
any part of the cost of construction of any such property or
assets, provided that the amount of any such financing shall not
exceed the amount expended in the acquisition of, or the
construction of, such property or assets and such Liens shall not
extend to any other property or assets of the Company or a
Restricted Subsidiary (other than any associated accounts,
contracts and insurance proceeds), (l) Liens securing Permitted
Refinancing Indebtedness with respect to any Indebtedness
referred to in clause (k) above, and (m) Liens incurred in the
ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not
exceed $5.0 million at any one time outstanding and that (1) are
not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (2) do not in the aggregate
materially detract from the value of the property or materially
impair the use thereof in the operation of business by the
Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness
of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness
of the Company or any of its Restricted Subsidiaries; provided,
however, that (a) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount of (or accreted value, if
applicable), plus premium, if any, and accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of reasonable expenses incurred in
connection therewith), (b) such Permitted Refinancing
Indebtedness has a final maturity date no earlier than the final
maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded, (c) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness is subordinated in right of payment to
the Notes on terms at least as favorable, taken as a whole, to
the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded and (d) such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; provided,
however, that a Restricted Subsidiary may guarantee Permitted
Refinancing Indebtedness incurred by the Company, whether or not
such Restricted Subsidiary was an obligor or guarantor of the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; provided, further, however, that if such
Permitted Refinancing Indebtedness is subordinated to the Notes,
such guarantee shall be subordinated to such Restricted
Subsidiary's Subsidiary Guarantee to at least the same extent.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-
stock company, trust, unincorporated organization or government
or agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision
or business).
"Productive Assets" means vessels or other assets (other
than assets that would be classified as current assets in
accordance with GAAP) of the kind used or usable by the Company
or its Restricted Subsidiaries in the business of providing
marine support vessels and related services to the oil and gas
industry (or any business that is reasonably complementary or
related thereto as determined in good faith by the Board of
Directors).
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A under the Securities Act.
"Qualified Equity Offering" means (a) any sale of Equity
Interests (other than Disqualified Stock) of the Company pursuant
to an underwritten offering registered under the Securities Act
or (b) any sale of Equity Interests (other than Disqualified
Stock) of the Company so long as, at the time of consummation of
such sale, the Company has a class of common equity securities
registered pursuant to Section 12(b) or Section 12(g) under the
Exchange Act.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of July 21, 1997, by and among the
Company, the Guarantors and the Initial Purchasers, as such
agreement may be amended, modified or supplemented from time to
time.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as
appropriate.
"Regulation S Permanent Global Note" means a permanent
global note that contains the paragraph referred to in footnote 1
and the additional schedule referred to in footnote 3 to the form
of the Note attached hereto as Exhibit A-1, and that is deposited
with the Note Custodian and registered in the name of the
Depository, representing a series of Notes sold in reliance on
Regulation S.
"Regulation S Temporary Global Note" means a single
temporary global senior note in the form of the Note attached
hereto as Exhibit A-2 that is deposited with the Note Custodian
and registered in the name of the Depository, representing a
series of Notes sold in reliance on Regulation S.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust Department
of the Trustee (or any successor department of the Trustee) or
any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Beneficial Interest" means any beneficial
interest of a Participant or Indirect Participant in a Restricted
Global Note.
"Restricted Definitive Notes" means the Definitive Notes
that is required to bear the legend set forth in Section 2.06(f)
hereof.
"Restricted Global Notes" means the 144A Global Note and the
Regulation S Global Note, each of which is required to bear the
legend set forth in Section 2.06(f) hereof.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of
such Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Series A/B Indenture" means the Indenture dated as of July
21, 1997 among the Company, the Subsidiary Guarantors thereto and
Texas Commerce Bank National Association, as Trustee, providing
for the issuance of the Series A/B Notes in the aggregate
principal amount of $110,000,000, as such may be amended and
supplemented from time to time.
"Series A/B Issue Date" means the date on which the Series
A/B Notes were originally issued under the Series A/B Indenture.
"Series A/B Notes" means the Company's 8 1/2% Senior Notes
due August 1, 2005 issued pursuant to the Series A/B Indenture,
as such may be amended or supplemented from time to time.
"Series A/B Subsidiary Guarantees" means those subsidiary
guarantees of the Series A/B Notes issued pursuant to the Series
A/B Indenture.
"Significant Subsidiary" means (a) any Restricted Subsidiary
of the Company that would be a "significant subsidiary" as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation was in effect
on the Series A/B Issue Date, (b) any other Restricted Subsidiary
of the Company that provides a guarantee under the Credit
Facility or incurs any Funded Indebtedness and (c) their
respective successors and assigns.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on
which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (a) any
corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (b) any partnership (i) the
sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (ii) the only
general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantees" means the joint and several
guarantees of the Company's payment obligations under the Notes
issued by all of the Guarantors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
sections 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA.
"Transfer Restricted Securities" means securities that bear
or are required to bear the legend set forth in Section 2.06(f)
hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"Unrestricted Global Notes" means one or more Global Notes
that do not and are not required to bear the legend set forth in
Section 2.06(f) hereof.
"Unrestricted Subsidiary" means any Subsidiary that is
designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors,
but only to the extent that such Subsidiary at the time of such
designation (a) has no Indebtedness other than Non-Recourse Debt,
(b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of
the Company unless such agreement, contract, arrangement or
understanding does not violate the terms of this Indenture
described in Section 4.11 hereof, and (c) is a Person with
respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Equity Interests or (ii) to maintain or
preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results, in
each case, except to the extent otherwise permitted by this
Indenture. Any such designation by the Board of Directors shall
be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors giving
effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any
time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company
as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date pursuant to Section 4.09 hereof, the
Company shall be in default of such covenant). The Board of
Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary, provided
that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (A) such Indebtedness is
permitted by Section 4.09 hereof, calculated on a pro forma basis
as if such designation had occurred at the beginning of the
four-quarter reference period, and (B) no Default or Event of
Default would be in existence following such designation.
"Weighted Average Life to Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by
dividing (a) the sum of the products obtained by multiplying (i)
the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by
(b) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person to the extent (a) all of the
outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be
owned directly or indirectly by such Person or (b) such
Restricted Subsidiary is organized in a foreign jurisdiction and
is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of
such foreign jurisdiction or individual or corporate citizens of
such foreign jurisdiction in order for such Restricted Subsidiary
to transact business in such foreign jurisdiction, provided that
such Person, directly or indirectly, owns the remaining Capital
Stock or ownership interests in such Restricted Subsidiary and,
by contract or otherwise, controls the management and business of
such Restricted Subsidiary and derives the economic benefits of
ownership of such Restricted Subsidiary to substantially the same
extent as if such Restricted Subsidiary were a wholly owned
Restricted Subsidiary.
Section 1.02.Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" or "incurrence" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
Section 1.03.Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of
this Indenture. Any terms incorporated in this Indenture that
are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule under the TIA have the meanings so
assigned to them.
Section 1.04.Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act or the Exchange Act shall be deemed to
include substitute, replacement or successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01.Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 or Exhibit A-2
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall
be dated the date of its authentication. The Notes shall be
issued in denominations of $1,000 and integral multiples thereof.
The Series C Notes and the Series D Notes shall be
considered collectively to be a single class for all purposes of
this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
(a) Global Notes. Except as provided in Section 2.01(c),
notes offered and sold in connection with the Offering by the
Initial Purchasers to QIBs in reliance on Rule 144A shall be
issued initially in the form of one or more 144A Global Notes,
which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, as custodian of the
Depository, and registered in the name of the Depository or a
nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the 144A Global Notes may from time
to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as
hereinafter provided.
Notes offered and sold in connection with the Offering by
the Initial Purchasers in reliance on Regulation S, if any, shall
be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers
of the Notes represented thereby with the Trustee, as custodian
for the Depository, and registered in the name of the Depository
or the nominee of the Depository for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by
the Company and authenticated by the Trustee as hereinafter
provided. The "40-day restricted period" (as defined in
Regulation S) shall be terminated upon the receipt by the Trustee
of (i) a written certificate from the Depository, together with
copies of certificates from Euroclear and Cedel certifying that
they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein
pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial
ownership interest in a 144A Global Note, all as contemplated by
Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate
from the Company. Following the termination of the 40-day
restricted period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests
in one or more Regulation S Permanent Global Notes pursuant to
the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the
Trustee shall cancel the Regulation S Temporary Global Note. The
aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Notes may from time to
time be increased or decreased by adjustments made on the records
of the Trustee and the Depository or its nominee, as the case may
be, in connection with transfers of interest as hereinafter
provided.
Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that
it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of
outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in
the amount of outstanding Notes represented thereby shall be made
by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and
the "Management Regulations" and "Instructions to Participants"
of Cedel shall be applicable to interests in the Regulation S
Temporary Global Note and the Regulation S Permanent Global
Notes, if any, that are held by Participants through Euroclear or
Cedel. The Trustee shall have no obligation to notify Holders of
any such procedures or to monitor or enforce compliance with the
same.
Except as set forth in Section 2.06 hereof, the Global Notes
may be transferred, in whole and not in part, only to another
nominee of the Depository or to a successor of the Depository or
its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall
apply only to 144A Global Notes and Regulation S Permanent Global
Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(b), authenticate and deliver
the Global Notes that (i) shall be registered in the name of the
Depository or the nominee of the Depository and (ii) shall be
delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Trustee as custodian for
the Depository.
Participants shall have no rights either under this
Indenture with respect to any Global Note held on their behalf by
the Depository or by the Note Custodian as custodian for the
Depository or under such Global Note, and the Depository may be
treated by the Company, the Trustee and any Agent of the Company
or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any Agent of the
Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its
Participants, the operation of customary practices of such
Depository governing the exercise of the rights of an owner of a
beneficial interest in any Global Note.
(c) Definitive Notes. Notes offered and sold in connection
with the Offering by the Initial Purchasers to Institutional
Accredited Investors who are not QIBs otherwise than in reliance
on Regulation S, if any, or to QIBs who elect to take their Notes
in definitive form shall be issued initially in the form of
Definitive Notes, duly executed by the Company and authenticated
by the Trustee as hereinafter provided.
Section 2.02.Execution and Authentication.
One Officer shall sign the Notes for the Company by manual
or facsimile signature. The Company's seal shall be reproduced
on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature shall be conclusive
evidence that the Note has been authenticated under this
Indenture. The form of Trustee's certificate of authentication
to be borne by the Notes shall be substantially as set forth in
Exhibit A-1 or Exhibit A-2 hereto.
The Trustee shall authenticate (i) the Series C Notes for
original issue up to the aggregate principal amount stated in
paragraph 4 of the Notes and (ii) the Series D Notes from time to
time for issue only in exchange for a like principal amount of
Series C Notes, in each case upon a written order of the Company
signed by one Officer, which written order shall specify (i) the
amount of Notes to be authenticated, (ii) whether the Notes are
Series C Notes or Series D Notes, and (iii) the amount of Notes
to be issued in global form or definitive form. The aggregate
principal amount of Notes outstanding at any time may not exceed
such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. An authenticating agent
may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company, any
Guarantor or an Affiliate of the Company.
Section 2.03.Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture,
and such agreement shall incorporate the TIA's provisions of this
Indenture that relate to such Agent. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
Section 2.04.Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal of or premium,
interest or Liquidated Damages, if any, on the Notes, and will
notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If
the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company,
the Trustee shall serve as Paying Agent for the Notes.
Section 2.05.Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders and shall otherwise comply
with TIA section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least seven Business Days
before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise
comply with TIA section 312(a).
Section 2.06.Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer
and exchange of Global Notes or beneficial interests therein
shall be effected through the Depository, in accordance with this
Indenture and the procedures of the Depository therefor, which
shall include restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial
interest in the same Global Note in accordance with the transfer
restrictions set forth in the legend in subsection (f) of this
Section 2.06. Transfers of beneficial interests in the Global
Notes to Persons required to take delivery thereof in the form of
an interest in another Global Note shall be permitted as follows:
(i) 144A Global Note to Regulation S Global Note. If,
at any time, an owner of a beneficial interest in a 144A
Global Note deposited with the Depository (or the Trustee as
custodian for the Depository) wishes to transfer its
beneficial interest in such 144A Global Note to a Person who
is required or permitted to take delivery thereof in the
form of an interest in a Regulation S Global Note, such
owner shall, subject to the Applicable Procedures, exchange
or cause the exchange of such interest for an equivalent
beneficial interest in a Regulation S Global Note as
provided in this Section 2.06(a)(i). Upon receipt by the
Trustee of (A) instructions given in accordance with the
Applicable Procedures from a Participant directing the
Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Note in an amount equal
to the beneficial interest in the 144A Global Note to be
transferred, (B) a written order given in accordance with
the Applicable Procedures containing information regarding
the Participant account of the Depository and the Euroclear
or Cedel account to be credited with such increase, and (C)
a certificate in the form of Exhibit B-1 hereto given by the
owner of such beneficial interest stating that the transfer
of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 of
Regulation S, then the Trustee, as Registrar, shall instruct
the Depository to reduce or cause to be reduced the
aggregate principal amount of the applicable 144A Global
Note and to increase or cause to be increased the aggregate
principal amount of the applicable Regulation S Global Note
by the principal amount of the beneficial interest in the
144A Global Note to be transferred, to credit or cause to be
credited to the account of the Person specified in such
instructions, a beneficial interest in the Regulation S
Global Note equal to the reduction in the aggregate
principal amount of the 144A Global Note, and to debit, or
cause to be debited, from the account of the Person making
such transfer the beneficial interest in the 144A Global
Note that is being transferred.
(ii) Regulation S Global Note to 144A Global Note. If,
at any time, after the expiration of the 40-day restricted
period, an owner of a beneficial interest in a Regulation S
Global Note deposited with the Depository or with the
Trustee as custodian for the Depository wishes to transfer
its beneficial interest in such Regulation S Global Note to
a Person who is required or permitted to take delivery
thereof in the form of an interest in a 144A Global Note,
such owner shall, subject to the Applicable Procedures,
exchange or cause the exchange of such interest for an
equivalent beneficial interest in a 144A Global Note as
provided in this Section 2.06(a)(ii). Upon receipt by the
Trustee of (A) instructions from Euroclear or Cedel, if
applicable, and the Depository, directing the Trustee, as
Registrar, to credit or cause to be credited a beneficial
interest in the 144A Global Note equal to the beneficial
interest in the Regulation S Global Note to be transferred,
such instructions to contain information regarding the
Participant account with the Depository to be credited with
such increase, (B) a written order given in accordance with
the Applicable Procedures containing information regarding
the participant account of the Depository and (C) a
certificate in the form of Exhibit B-2 attached hereto given
by the owner of such beneficial interest stating (1) if the
transfer is pursuant to Rule 144A, that the Person
transferring such interest in a Regulation S Global Note
reasonably believes that the Person acquiring such interest
in a 144A Global Note is a QIB and is obtaining such
beneficial interest in a transaction meeting the
requirements of Rule 144A, (2) that the transfer complies
with the requirements of Rule 144 under the Securities Act,
(3) if the transfer is to an Institutional Accredited
Investor, that such transfer is in compliance with the
Securities Act and a certificate in the form of Exhibit C
attached hereto and, if such transfer is in respect of an
aggregate principal amount of less than $100,000, an Opinion
of Counsel acceptable to the Company that such transfer is
in compliance with the Securities Act and any applicable
blue sky laws of any State of the United States, (4) if the
transfer is pursuant to any other exemption from the
registration requirements of the Securities Act, that the
transfer of such interest has been made in compliance with
the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the requirements of the
exemption claimed, such statement to be supported by an
Opinion of Counsel from the transferee or the transferor in
form reasonably acceptable to the Company and to the
Registrar and in each case of clause (1), (2), (3) or (4)
above, in accordance with any applicable securities laws of
any state of the United States or any other applicable
jurisdiction or (5) such transfer is being effected pursuant
to an effective registration statement under the Securities
Act, then the Trustee, as Registrar, shall instruct the
Depository to reduce or cause to be reduced the aggregate
principal amount of such Regulation S Global Note and to
increase or cause to be increased the aggregate principal
amount of the applicable 144A Global Note by the principal
amount of the beneficial interest in the Regulation S Global
Note to be transferred, and the Trustee, as Registrar, shall
instruct the Depository, concurrently with such reduction,
to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest
in the applicable 144A Global Note equal to the reduction in
the aggregate principal amount of such Regulation S Global
Note and to debit or cause to be debited from the account of
the Person making such transfer the beneficial interest in
the Regulation S Global Note that is being transferred.
(b) Transfer and Exchange of Definitive Notes. When
Definitive Notes are presented by a Holder to the Registrar with
a request to register the transfer of the Definitive Notes or to
exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested
only if the Definitive Notes are presented or surrendered for
registration of transfer or exchange, are endorsed or accompanied
by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly
authorized in writing and the Registrar received the following
documentation (all of which may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer
Restricted Securities, such request shall be accompanied by
the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, or such
Transfer Restricted Security is being transferred
(1) to the Company or any of its Subsidiaries or
(2) pursuant to an effective registration statement
under the Securities Act, a certification to that
effect from such Holder (in substantially the form of
Exhibit B-3 hereto);
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form
of Exhibit B-3 hereto);
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect from
such Holder (in substantially the form of Exhibit B-3
hereto but containing the certification called for by
clauses (1) through (4) of Exhibit B-1 hereto); or
(D) if such Transfer Restricted Security is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration
requirements of the Securities Act other than those
listed in subparagraph (B) or (C) above, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto), and a
certification substantially in the form of Exhibit C
hereto from the transferee, and, if such transfer is in
respect of an aggregate principal amount of Notes of
less than $100,000, an Opinion of Counsel acceptable to
the Company that such transfer is in compliance with
the Securities Act and any applicable blue sky laws of
any state of the United States.
(c) Transfer of a Beneficial Interest in a 144A Global Note
or Regulation S Permanent Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a 144A
Global Note or Regulation S Permanent Global Note may upon
request, subject to the Applicable Procedures, exchange such
beneficial interest for a Definitive Note, upon receipt by
the Trustee of written instructions or such other form of
instructions as is customary for the Depository (or
Euroclear or Cedel, if applicable), from the Depository or
its nominee on behalf of any Person having a beneficial
interest in a 144A Global Note or Regulation S Permanent
Global Note, and, in the case of a Transfer Restricted
Security, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depository
as being the beneficial owner or to the Company or any
of its Subsidiaries, a certification to that effect
from such Person (in substantially the form of Exhibit
B-4 hereto);
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B-4 hereto);
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B-4
hereto but containing the certification called for by
clauses (1) through (4) of Exhibit B-1 hereto); or
(D) if such beneficial interest is being
transferred to an Institutional Accredited Investor,
pursuant to a private placement exemption from the
registration requirements of the Securities Act other
than those listed in subparagraph (B) or (C) above, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-4 hereto) and a
certification from the applicable transferee (in
substantially the form of Exhibit C hereto),
in which case the Trustee or the Note Custodian, at the
direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the
Depository and the Note Custodian, cause the aggregate
principal amount of 144A Global Notes or Regulation S
Permanent Global Notes, as applicable, to be reduced
accordingly and, following such reduction, the Company shall
execute and, the Trustee shall authenticate and deliver to
the transferee a Definitive Note in the appropriate
principal amount.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a 144A Global Note or Regulation S
Permanent Global Note, as applicable, pursuant to this
Section 2.06(c) shall be registered in such names and in
such authorized denominations as the Depository, pursuant to
instructions from its direct or Indirect Participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Following any such issuance
of Definitive Notes, the Trustee, as Registrar, shall
instruct the Depository to reduce or cause to be reduced the
aggregate principal amount of the applicable Global Note to
reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.06),
a Global Note may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository
or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(e) Authentication of Definitive Notes in Absence of
Depository. If at any time:
(i) the Depository for the Notes notifies the Company
that the Depository is unwilling or unable to continue as
Depository for the Global Notes and a successor Depository
for the Global Notes is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of
Definitive Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with Section
2.02 hereof, authenticate and deliver, Definitive Notes in an
aggregate principal amount equal to the principal amount of the
Global Notes in exchange for such Global Notes.
(f) Legends.
(i) Except as permitted by the following paragraphs
(ii), (iii) and (iv), each Note certificate evidencing a
Global Note and a Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1) (a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Note that does not
bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security upon certification from the transferring
holder substantially in the form of Exhibit B-3 hereto;
and
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the
legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.06(a) and (c)
hereof; provided, however, that with respect to any
request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a
Definitive Note that does not bear the legend set forth
in (i) above, which request is made in reliance upon
Rule 144 or pursuant to an effective registration
statement, the Holder thereof shall certify in writing
to the Registrar that such request is being made
pursuant to Rule 144 or pursuant to an effective
registration statement (such certification to be
substantially in the form of Exhibit B-4 hereto).
(iii)Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) in reliance on any exemption
from the registration requirements of the Securities Act
(other than exemptions pursuant to Rule 144 under the
Securities Act) in which the Holder or the transferee
provides an Opinion of Counsel to the Company and the
Registrar in form and substance reasonably acceptable to the
Company and the Registrar (which Opinion of Counsel shall
also state that the transfer restrictions contained in the
legend are no longer applicable):
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Note that does not
bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the
legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.06(a) and (c)
hereof.
(iv) Notwithstanding the foregoing, upon consummation
of the Exchange Offer, the Company shall issue and, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate (A) one
or more Unrestricted Global Notes in aggregate principal
amount equal to the principal amount of the Restricted
Beneficial Interests tendered for acceptance by Persons that
are not (1) broker-dealers, (2) Persons participating in the
distribution of the Series D Notes or (3) Persons who are
Affiliates of the Company and accepted for exchange in the
Exchange Offer and (B) Definitive Notes that do not bear the
legend set forth in this Section 2.06(f) in an aggregate
principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be
reduced accordingly and the Company shall execute and the
Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
(g) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been
exchanged for Definitive Notes, redeemed, repurchased or
cancelled, all Global Notes shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for Definitive Notes,
redeemed, repurchased or cancelled, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note, by the Trustee
or the Notes Custodian, at the direction of the Trustee, to
reflect such reduction.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, subject to this Section 2.06, the Company shall
execute and, upon the written order of the Company signed by
two Officers of the Company, the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 4.10, 4.15 and 9.05
hereof).
(iii)The Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon
any registration of transfer or exchange of Definitive Notes
or Global Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Definitive Notes or
Global Notes surrendered upon such registration of transfer
or exchange.
(v) The Company and the Registrar shall not be
required:
(A) to issue, to register the transfer of or to
exchange Notes during a period beginning at the opening
of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of
selection;
(B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being
redeemed in part;
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding
interest payment date; or
(D) to register the transfer of a Note other than
in amounts of $1,000 or multiple integrals thereof.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on
such Notes, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary.
(vii)The Trustee shall authenticate Definitive Notes
and Global Notes in accordance with the provisions of
Section 2.02 hereof.
Section 2.07.Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Company, or the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon the written order of the Company
signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any
Agent and any authenticating agent from any loss that any of them
may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note. If, after the delivery of such
replacement Note, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for
payment or registration such original Note, the Trustee shall be
entitled to recover such replacement Note from the Person to whom
it was delivered or any Person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Company, the
Trustee, any Agent and any authenticating agent in connection
therewith.
Subject to the provisions of the final sentence of the
preceding paragraph of this Section 2.07, every replacement Note
is an additional obligation of the Company and shall be entitled
to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08.Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section
as not outstanding. Except as set forth in Section 2.09 hereof,
a Note does not cease to be outstanding because the Company, any
Subsidiary of the Company or an Affiliate of the Company or any
Subsidiary of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the entire principal of and premium, interest and
Liquidated Damages, if any, on any Note are considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest and
Liquidated Damages, if any, on it cease to accrue.
If the Paying Agent (other than the Company, a Subsidiary of
the Company or an Affiliate of any thereof) holds, on a
redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes
shall be deemed to be no longer outstanding and shall cease to
accrue interest and Liquidated Damages, if any.
Section 2.09.Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, a Subsidiary of the Company
or an Affiliate, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Notes that a Trustee knows are so owned shall be so
disregarded. Notwithstanding the foregoing, Notes that the
Company, a Subsidiary of the Company or an Affiliate offers to
purchase or acquires pursuant to an offer, exchange offer, tender
offer or otherwise shall not be deemed to be owned by the
Company, a Subsidiary of the Company or an Affiliate until legal
title to such Notes passes to the Company, such Subsidiary or
such Affiliate as the case may be.
Section 2.10.Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes
upon a written order of the Company signed by two Officers of the
Company. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
Until such exchange, Holders of temporary Notes shall be entitled
to all of the benefits of this Indenture.
Section 2.11.Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and, at the
request of the Company, shall destroy cancelled Notes (subject to
the record retention requirement of the Exchange Act).
Certification of the destruction of all cancelled Notes shall be
delivered to the Company. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the
Trustee for cancellation, other than as contemplated by the
Exchange Offer.
Section 2.12.Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and
in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company
shall fix or cause to be fixed each such special record date and
payment date, provided, however, that no such special record date
shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and
the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01.Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than
60 days before a redemption date, an Officers' Certificate
setting forth (i) the clause of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption
price.
Section 3.02.Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any
time, the Trustee shall select the Notes to be redeemed among the
Holders of the Notes, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 days nor more than
60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to
be redeemed. Notes and portions of Notes selected shall be in
amounts of $1,000 or whole multiples of $1,000. Provisions of
this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
The provisions of the two preceding paragraphs of this
Section 3.02 shall not apply with respect to any redemption
affecting only a Global Note, whether such Global Note is to be
redeemed in whole or in part. In case of any such redemption in
part, the unredeemed portion of the principal amount of the
Global Note shall be in an authorized denomination.
Section 3.03.Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least
30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion
of the principal amount of such Note to be redeemed and
that, after the redemption date upon surrender of such Note,
a new Note or Notes in a principal amount equal to the
unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Liquidated Damages, if any,
on Notes called for redemption cease to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption
are being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Notes.
If any of the Notes to be redeemed is in the form of a
Global Note, then the Company shall modify such notice to the
extent necessary to accord with the procedures of the Depository
applicable to redemption.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at
least 45 days (unless the Company and the Trustee agree to a
shorter period) prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.04.Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be conditional.
Section 3.05.Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 2.04 hereof) money sufficient to pay the redemption
price of and accrued interest and Liquidated Damages, if any, on
all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any money deposited with the
Paying Agent by the Company in excess of the amounts necessary to
pay the redemption price of and accrued interest and Liquidated
Damages, if any, on all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and
Liquidated Damages, if any, shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid
interest and Liquidated Damages, if any, shall be paid to the
Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption
shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent
lawful on any interest and Liquidated Damages, if any, not paid
on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
Section 3.06.Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note
surrendered.
Section 3.07.Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07,
the Company shall not have the option to redeem the Notes
pursuant to this Section 3.07 prior to August 1, 2001.
Thereafter, the Company shall have the option to redeem the
Notes, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, to
the applicable redemption date, if redeemed during the twelve-
month period beginning on August 1 of the years indicated below:
Year Percentage
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, the Company may at any time prior to August 1,
2001, at its option, redeem the Notes, in whole or in part, at
the Make-Whole Price, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date. In
addition, at any time prior to July 17, 2000, the Company may
redeem up to 35% of the aggregate principal amount of Notes
originally issued at a redemption price of 108.5% of the
principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date, with
the net cash proceeds of one or more Qualified Equity Offerings,
provided that (i) at least $65 million in aggregate principal
amount of Notes remains outstanding immediately after the
occurrence of each such redemption and (ii) each such redemption
shall occur within 60 days of the date of the closing of each
such Qualified Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through Section
3.06 hereof.
Section 3.08.Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15 hereof, the
Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09.Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders to
purchase Notes (an "Asset Sale Offer"), it shall follow the
procedures specified below. For purposes of this Section 3.09,
any reference herein to "Notes" shall be deemed to include the
Notes and the Series A/B Notes.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to
the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the
Company shall purchase the principal amount of Notes required to
be purchased pursuant to Section 4.10 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes
validly tendered in response to the Asset Sale Offer. Payment
for any Notes so purchased shall be made in the same manner as
interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued
and unpaid interest and Liquidated Damages, if any, shall be paid
to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest or
Liquidated Damages, if any, shall be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to each of the Holders,
with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale
Offer shall be made to all Holders. The notice, which shall
govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant
to this Section 3.09 and Section 4.10 hereof and the length
of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest and Liquidated Damages, if
any;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest and Liquidated
Damages, if any after the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may only elect to have all
of such Note purchased and may not elect to have only a
portion of such Note purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note completed, to
the Company or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company or the Paying Agent, as the case may
be, receives, not later than the expiration of the Offer
Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount
of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to
have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Trustee
shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in
part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
If any of the Notes subject to an Asset Sale Offer is in the
form of a Global Note, then the Company shall modify such notice
to the extent necessary to accord with the procedures of the
Depository applicable to repurchases.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the
Offer Amount has been tendered, all Notes tendered, and shall
deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The
Company or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee shall authenticate and
mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered.
Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Purchase
Date.
Other than as specifically provided in this Section 3.09,
any purchase pursuant to this Section 3.09 shall be made pursuant
to the provisions of Section 3.01 through Section 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01.Payment of Notes.
The Company shall pay or cause to be paid the principal of
and premium, interest and Liquidated Damages, if any, on the
Notes on the dates and in the manner provided in the Notes.
Principal, premium, interest and Liquidated Damages, if any,
shall be considered paid on the date due if the Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of 10:00
a.m. New York time on the due date money deposited by the Company
in immediately available funds and designated for and sufficient
to pay all principal, premium, interest and Liquidated Damages,
if any, then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any (without
regard to any applicable grace period), at the same rate to the
extent lawful.
Section 4.02.Maintenance of Office or Agency.
The Company shall maintain in the City of New York an office
or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the City of
New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in
accordance with Section 2.03.
Section 4.03.Reports.
(a) Whether or not the Company is required to do so by the
rules and regulations of the SEC, the Company will file with the
SEC (unless the SEC will not accept such a filing) and, within 15
days of filing, or attempting to file, the same with the SEC,
furnish to the holders of the Notes (i) all quarterly and annual
financial and other information with respect to the Company and
its Subsidiaries that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants, and
(ii) all current reports that would be required to be filed with
the SEC on Form 8-K if the Company were required to file such
reports. The Company shall at all times comply with TIA
section 314(a).
(b) The Company and the Guarantors shall furnish to the
holders of the Notes, prospective purchasers of the Notes and
securities analysts, upon their request, the information, if any,
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04.Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its
Restricted Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that
to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments
on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take
with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant
to Section 4.03(a) above shall be accompanied by a written
statement of the Company's independent public accountants (who
shall be a firm of established national reputation) that in
making the examination necessary for certification of such
financial statements, nothing has come to their attention that
would lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof or, if any such
violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect
thereto.
Section 4.05.Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested
in good faith and by appropriate proceedings or where the failure
to effect such payment is not adverse in any material respect to
the Holders of the Notes.
Section 4.06.Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law
has been enacted.
Section 4.07.Restricted Payments.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (i) declare
or pay any dividend or make any other payment or distribution on
account of the Company's or any of its Restricted Subsidiaries'
Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the
Company) or to the direct or indirect holders of the Company's
Equity Interests in their capacity as such (other than dividends
or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company); (ii) purchase, redeem or
otherwise acquire or retire for value (including without
limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company (other
than any such Equity Interests owned by the Company or any Wholly
Owned Restricted Subsidiary of the Company); (iii) make any
payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value, any Indebtedness that is
subordinated to the Notes, except a payment of interest or
principal at Stated Maturity; or (iv) make any Restricted
Investment (all such payments and other actions set forth in
clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in
Section 4.09 hereof; and
(c) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by
the Company and its Restricted Subsidiaries after the Series
A/B Issue Date (excluding Restricted Payments permitted by
clauses (b), (c), (d) and (f), but including, without
duplication, Restricted Payments permitted by clauses (a)
and (e), of the next succeeding paragraph), is less than the
sum of (A) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from July 1,
1997 to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit,
less 100% of such deficit), plus (B) 100% of the aggregate
net cash proceeds received by the Company from the issue or
sale since the Series A/B Issue Date of Equity Interests of
the Company (other than Disqualified Stock) or of
Disqualified Stock or debt securities of the Company that
have been converted into such Equity Interests (other than
any such Equity Interests, Disqualified Stock or convertible
debt securities sold to a Restricted Subsidiary of the
Company and other than Disqualified Stock or convertible
debt securities that have been converted into Disqualified
Stock), plus (C) to the extent that any Restricted
Investment that was made after the Series A/B Issue Date is
or was sold for cash or otherwise liquidated or repaid for
cash, the lesser of (1) the cash return of capital with
respect to such Restricted Investment (less the cost of
disposition, if any) and (2) the initial amount of such
Restricted Investment, plus (D) in the event that any
Unrestricted Subsidiary is redesignated as a Restricted
Subsidiary, the lesser of (1) an amount equal to the fair
value of the Company's Investments in such Restricted
Subsidiary and (2) the amount of Restricted Investments
previously made by the Company and its Restricted
Subsidiaries in such Unrestricted Subsidiary, plus (E) $5.0
million.
The foregoing provisions will not prohibit (a) the payment
of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture and the Series A/B
Indenture; (b) the redemption, repurchase, retirement, defeasance
or other acquisition of any subordinated Indebtedness or Equity
Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of, other Equity Interests of the
Company (other than any Disqualified Stock), provided that the
amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (iii)(B) of the
preceding paragraph; (c) the defeasance, redemption, repurchase,
retirement or other acquisition of subordinated Indebtedness with
the net cash proceeds from an incurrence of, or in exchange for,
Permitted Refinancing Indebtedness; (d) the payment of any
dividend or distribution by a Restricted Subsidiary of the
Company to the to the Company or any Wholly Owned Restricted
Subsidiary; (e) so long as no Default or Event of Default shall
have occurred and be continuing, the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests
of the Company held by any employee of the Company's or any of
its Restricted Subsidiaries, provided that the aggregate price
paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $500,000 in any calendar year;
and (f) the acquisition of Equity Interests of the Company in
connection with the exercise of stock options or stock
appreciation rights by way of cashless exercise or in connection
with the satisfaction of withholding tax obligations.
The Board of Directors may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted
Payments at the time of such designation. All such outstanding
Investments will be deemed to constitute Investments in an amount
equal to the greater of (a) the net book value of such
Investments at the time of such designation and (b) the fair
market value of such Investments at the time of such designation.
Such designation shall only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, provided that such designation shall be deemed to be
an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (a)
such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period,
and (b) no Default or Event of Default would be in existence
following such designation.
Any designation of a Subsidiary as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of a resolution of the Board of
Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
terms of the definition of Unrestricted Subsidiary set forth in
this Indenture and with this Section 4.07.
The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of the Restricted
Payment of the asset(s) or securities proposed to be transferred
or issued by the Company or such Restricted Subsidiary, as the
case may be, pursuant to the Restricted Payment. The fair market
value of any non-cash Restricted Payment shall be determined in
the manner contemplated by the definition of the term "fair
market value," and the results of such determination shall be
evidenced by an Officers' Certificate delivered to the Trustee.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this
Section 4.07 were computed.
Section 4.08.Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted
Subsidiary to (a)(i) pay dividends or make any other
distributions to the Company or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or
(ii) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries, (b) make loans or advances to the
Company or any of its Restricted Subsidiaries or (c) transfer any
of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (1) the Credit
Facility or Existing Indebtedness, each as in effect on the
Series A/B Issue Date, (2) this Indenture, the Notes, the Series
A/B Indenture and the Series A/B Notes, (3) applicable law, (4)
any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except
to the extent such Indebtedness was incurred in connection with
or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred, (5) by reason of customary non-
assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices, (6)
purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature
described in clause (c) above on the property so acquired, (7)
customary provisions in bona fide contracts for the sale of
property or assets or (8) Permitted Refinancing Indebtedness with
respect to any Indebtedness referred to in clauses (1) and (2)
above, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced.
Section 4.09.Incurrence of Indebtedness and Issuance of Preferred
Stock.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to
(collectively, "incur" or an "incurrence") any Indebtedness and
that the Company will not issue any Disqualified Stock and will
not permit any of its Restricted Subsidiaries to issue any shares
of preferred stock; provided, however, that the Company and its
Restricted Subsidiaries may incur Indebtedness, and the Company
may issue Disqualified Stock, if the Consolidated Interest
Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued
would have been at least 2.25 to 1, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness or Disqualified
Stock had been issued or incurred at the beginning of such four-
quarter period.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness under the Credit Facility in an
aggregate principal amount at any one time outstanding not
to exceed $65.0 million, plus any fees, premiums, expenses
(including costs of collection), indemnities and similar
amounts payable in connection with such Indebtedness, and
less any amounts repaid permanently in accordance with
Section 4.10;
(b) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(c) the incurrence by the Company and its Restricted
Subsidiaries of Hedging Obligations;
(d) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by the Notes, the
Subsidiary Guarantees, this Indenture, the Series A/B Notes,
the Series A/B Subsidiary Guarantees, and the Series A/B
Indenture;
(e) the incurrence of intercompany Indebtedness
between or among the Company and any of its Wholly Owned
Restricted Subsidiaries, provided that any subsequent
issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the
Company or a Wholly Owned Restricted Subsidiary of the
Company, or any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a
Wholly Owned Restricted Subsidiary of the Company, shall be
deemed to constitute an incurrence of such Indebtedness by
the Company or such Restricted Subsidiary, as the case may
be;
(f) Indebtedness in respect of bid, performance or
surety bonds issued for the account of the Company or any
Restricted Subsidiary thereof in the ordinary course of
business, including guarantees or obligations of the Company
or any Restricted Subsidiary thereof with respect to letters
of credit supporting such bid, performance or surety
obligations (in each case other than for an obligation for
money borrowed); and
(g) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or
refund Indebtedness that was permitted by this Indenture to
be incurred (other than pursuant to clause (a) or (e) of
this Section 4.09).
In the event that the incurrence of any Indebtedness would
be permitted by the first paragraph set forth above or one or
more of the provisions set forth in the second paragraph above,
the Company may designate (in the form of an Officers'
Certificate delivered to the Trustee) the particular provision of
this Indenture pursuant to which it is incurring such
Indebtedness.
Section 4.10.Asset Sales.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (a)
the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in accordance with
the definition of such term, the results of which determination
shall be set forth in an Officers' Certificate delivered to the
Trustee) of the assets or Equity Interests issued or sold or
otherwise disposed of and (b) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is
in the form of cash or Cash Equivalents; provided, however, that
the amount of (i) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet) of the
Company or such Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated
to the Notes or any guarantee thereof) that are assumed by the
transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary
from further liability and (ii) any securities, notes or other
obligations received by the Company or such Restricted Subsidiary
from such transferee that are immediately converted by the
Company or such Restricted Subsidiary into cash (to the extent of
the cash received) shall be deemed to be cash for purposes of
this Section 4.10.
Within 365 days after the receipt of any Net Proceeds from
an Asset Sale, the Company or any such Restricted Subsidiary may
apply such Net Proceeds to (a) permanently repay the principal of
any secured Indebtedness (to the extent of the fair value of the
assets securing such Indebtedness, as determined by the Board of
Directors) or (b) to acquire (including by way of a purchase of
assets or stock, merger, consolidation or otherwise) Productive
Assets. (Any such Net Proceeds that are applied to the
acquisition of Productive Assets pursuant to any binding
agreement to construct any new marine vessel useful in the
business of the Company or any of its Restricted Subsidiaries
shall be deemed to have been applied for such purpose within such
365-day period so long as they are so applied within 18 months of
the effective date of such agreement but no later than two years
after the date of receipt of such Net Proceeds.) Pending the
final application of any such Net Proceeds, the Company or any
such Restricted Subsidiary may temporarily reduce outstanding
revolving credit borrowings, including borrowings under the
Credit Facility, or otherwise invest such Net Proceeds in any
manner that is not prohibited by this Indenture and the Series
A/B Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this
paragraph shall be deemed to constitute "Excess Proceeds."
Within 30 days of each date on which the aggregate amount of
Excess Proceeds exceeds $5.0 million, the Company shall commence
a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to
purchase the maximum principal amount of Notes that may be
purchased out of Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages, if any,
thereon, to the date of purchase, in accordance with the
procedures set forth in Section 3.09 hereof; provided, however,
that, if the Company is required to apply such Excess Proceeds to
repurchase, or to offer to repurchase, any Pari Passu
Indebtedness, the Company shall only be required to offer to
repurchase the maximum principal amount of Notes that may be
purchased out of the amount of such Excess Proceeds multiplied by
a fraction, the numerator of which is the aggregate principal
amount of Notes outstanding and the denominator of which is the
aggregate principal amount of Notes outstanding plus the
aggregate principal amount of Pari Passu Indebtedness
outstanding. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the amount
that the Company is required to repurchase, the Company may use
any remaining Excess Proceeds for general corporate purposes. If
the aggregate amount of Notes surrendered by holders thereof
exceeds the amount that the Company is required to repurchase,
the Trustee shall select the Notes to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased). Upon completion
of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero. For purposes of this paragraph only, any
reference herein to "Notes" shall be deemed to include the Notes
and the Series A/B Notes.
Section 4.11.Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or
make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person or, if there is no such
comparable transaction, on terms that are fair and reasonable to
the Company or such Restricted Subsidiary, and (b) the Company
delivers to the Trustee (i) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $1.0 million, a resolution
of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause
(a) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of
Directors and (ii) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, other than any such
transactions with a joint venture engaged in the business of
providing marine support vessels and related services to the oil
and gas industry (or a business that is reasonably complementary
or related thereto as determined in good faith by the Board of
Directors), an opinion as to the fairness to the Company or the
relevant Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or
investment banking firm that is, in the judgment of the Board of
Directors, qualified to render such opinion and is independent
with respect to the Company; provided, however, that the
following shall be deemed not to be Affiliate Transactions: (A)
any employment agreement or other employee compensation plan or
arrangement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business of the Company or
such Restricted Subsidiary; (B) transactions between or among the
Company and its Restricted Subsidiaries; (C) Permitted
Investments and Restricted Payments that are permitted by the
provisions of this Indenture; (D) loans or advances to officers,
directors and employees of the Company or any Restricted
Subsidiary made in the ordinary course of business and consistent
with past practices of the Company and its Restricted
Subsidiaries in an aggregate amount not to exceed $500,000
outstanding at any one time; (E) indemnities of officers,
directors and employees of the Company or any Restricted
Subsidiary permitted by bylaw or statutory provisions; and (F)
the payment of reasonable and customary regular fees to directors
of the Company or any of its Restricted Subsidiaries who are not
employees of the Company or any Affiliate.
Section 4.12.Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien on any asset now owned
or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom, except
Permitted Liens, to secure (a) any Indebtedness of the Company or
such Restricted Subsidiary (if it is not also a Guarantor),
unless prior to, or contemporaneously therewith, the Notes are
equally and ratably secured, or (b) any Indebtedness of any
Guarantor, unless prior to, or contemporaneously therewith, the
Subsidiary Guarantees are equally and ratably secured; provided,
however, that if such Indebtedness is expressly subordinated to
the Notes or the Subsidiary Guarantees, the Lien securing such
Indebtedness will be subordinated and junior to the Lien securing
the Notes or the Subsidiary Guarantees, as the case may be, with
the same relative priority as such Indebtedness has with respect
to the Notes or the Subsidiary Guarantees.
Section 4.13.Additional Subsidiary Guarantees.
(a) If the Company or any of its Restricted Subsidiaries
shall, after the Series A/B Issue Date, acquire or create another
Significant Subsidiary, or (b) if, after such date, a Restricted
Subsidiary shall provide a guarantee under the Credit Facility or
incur any Funded Indebtedness, then such newly acquired or
created Significant Subsidiary or such Subsidiary described in
clause (b) above shall execute a Subsidiary Guarantee and deliver
an Opinion of Counsel and an Officers' Certificate in accordance
with the terms of Section 10.02 of this Indenture.
Section 4.14.Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, and the corporate,
partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary; provided, however,
that the Company shall not be required to preserve the existence
of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole.
Section 4.15.Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer (a "Change of Control Offer") to repurchase
all or any part (equal to $1,000 or an integral multiple thereof)
of each Holder's Notes at an offer price in cash equal to 101% of
the aggregate principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the date of
repurchase (the "Change of Control Payment"). Within 30 days
following a Change of Control, the Company shall mail a notice to
each Holder and the Trustee stating: (1) that the Change of
Control Offer is being made pursuant to this Section 4.15 and
that all Notes validly tendered and not withdrawn will be
accepted for payment; (2) the purchase price and the purchase
date, which shall be no earlier than 30 days but no later than 60
days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Note not tendered will continue to
accrue interest and Liquidated Damages, if any; (4) that, unless
the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest and Liquidated
Damages, if any, after the Change of Control Payment Date; (5)
that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes,
properly endorsed for transfer, together with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes
completed and such customary documents as the Company may
reasonably request, to the Paying Agent at the address specified
in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (6)
that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and (7)
that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must
be equal to $1,000 in principal amount or an integral multiple
thereof. If any of the Notes subject to a Change of Control
Offer is in the form of a Global Note, then the Company shall
modify such notice to the extent necessary to accord with the
procedures of the Depository applicable to repurchases. Further,
the Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of Notes as a
result of a Change of Control.
(b) On or before 10:00 a.m. New York time on the Change of
Control Payment Date, the Company shall, to the extent lawful,
(a) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (b) deposit
with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered
and (c) deliver or cause to be delivered to the Trustee the Notes
so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to
each holder of Notes so tendered the Change of Control Payment
for such Notes, and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a
new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided, however, that each such
new Note will be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results
of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
(c) The Change of Control provisions described above shall
be applicable whether or nor any other provisions of this
Indenture are applicable.
(d) The Company shall not be required to make a Change of
Control Offer following a Change of Control if a third party
makes the Change of Control Offer in the manner, at the time and
otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
Section 4.16.Issuances and Sales of Capital Stock of Wholly Owned
Restricted Subsidiaries.
The Company (i) shall not, and shall not permit any Wholly
Owned Restricted Subsidiary of the Company to, transfer, convey,
sell, or otherwise dispose of any Capital Stock of any Wholly
Owned Restricted Subsidiary of the Company to any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the
Company), unless (a) such transfer, conveyance, sale, or other
disposition is of all the Capital Stock of such Wholly Owned
Restricted Subsidiary and (b) the Net Proceeds from such
transfer, conveyance, sale, or other disposition are applied in
accordance with Section 4.10 hereof, and (ii) shall not permit
any Wholly Owned Restricted Subsidiary of the Company to issue
any of its Equity Interests to any Person other than to the
Company or a Wholly Owned Restricted Subsidiary of the Company;
except, in the case of both clauses (i) and (ii) above, with
respect to (1) dispositions or issuances by a Wholly Owned
Restricted Subsidiary of the Company as contemplated in clauses
(a) and (b) of the definition of "Wholly Owned Restricted
Subsidiary" or (2) other dispositions or issuances of up to 35%
of the outstanding Capital Stock of a Wholly Owned Restricted
Subsidiary of the Company, provided that, after giving pro forma
effect thereto, the Investment of the Company and its Wholly
Owned Restricted Subsidiaries in all Restricted Subsidiaries that
are not Wholly Owned Restricted Subsidiaries of the Company,
determined on a consolidated basis in accordance with GAAP, does
not exceed 15% of Consolidated Net Tangible Assets of the
Company.
Section 4.17.Sale-and-leaseback Transactions.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale-and-leaseback
transaction; provided, however, that the Company or any
Restricted Subsidiary, as applicable, may enter into a sale-and-
leaseback transaction if (i) the Company or such Restricted
Subsidiary could have (a) incurred Indebtedness in an amount
equal to the Attributable Indebtedness relating to such sale-and-
leaseback transaction pursuant to the Consolidated Interest
Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof and (b) incurred a Lien to secure such Indebtedness
pursuant to Section 4.12 hereof, (ii) the gross cash proceeds of
such sale-and-leaseback transaction are at least equal to the
fair market value (as determined in accordance with the
definition of such term, the results of which determination shall
be set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such sale-and-
leaseback transaction and (iii) the transfer of assets in such
sale-and-leaseback transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with,
Section 4.10 hereof.
Section 4.18.No Inducements.
The Company shall not, and the Company shall not permit any
of its Subsidiaries, either directly or indirectly, to pay (or
cause to be paid) any consideration, whether by way of interest,
fee or otherwise, to any Holder for or as an inducement to any
consent, waiver, amendment or supplement of any terms or
provisions of this Indenture or the Notes, unless such
consideration is offered to be paid (or agreed to be paid) to all
Holders which so consent, waive or agree to amend or supplement
in the time frame set forth on solicitation documents relating to
such consent, waiver or agreement.
ARTICLE 5
SUCCESSORS
Section 5.01.Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets in one or more
related transactions, to another Person unless (a) the Company is
the surviving corporation or the Person formed by or surviving
any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state
thereof or the District of Columbia, (b) the Person formed by or
surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made
assumes all the obligations of the Company under the Notes and
this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee, (c) immediately after
such transaction no Default or Event of Default exists and (d)
except in the case of a merger of the Company with or into a
Wholly Owned Restricted Subsidiary of the Company, the Company or
the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition
shall have been made (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction and (B) will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof.
In connection with any consolidation, merger or disposition
contemplated by this provision, the Company shall deliver, or
cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger or disposition and the supplemental indenture in respect
thereto comply with this provision and that all conditions
precedent in the Indenture provided for relating to such
transaction or transactions have been complied with.
Section 5.02.Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of the Company in
accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor
corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same
effect as if such successor corporation had been named as the
Company herein; provided, however, that the predecessor Company
shall not be relieved from its obligations under this Indenture
or the Notes in the case of any such lease.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01.Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of
interest on, or Liquidated Damages, if any, with respect to,
the Notes, and such default continues for a period of 30
days;
(b) the Company defaults in the payment when due of
principal of or premium, if any, on the Notes;
(c) the Company fails to comply with any of the
provisions of Section 4.10, 4.15 or 5.01 hereof;
(d) the Company fails to observe or perform any other
covenant or other agreement in this Indenture or the Notes
for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in principal amount of the Notes
then outstanding of such failure;
(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or was created after
the Series A/B Issue Date, which default (i) is caused by a
failure to pay principal of or premium or interest on such
Indebtedness prior to the expiration of any grace period
provided in such Indebtedness (a "Payment Default") or (ii)
results in the acceleration of such Indebtedness prior to
its express maturity and, in each case, the principal amount
of any such Indebtedness, together with the principal amount
of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so
accelerated, aggregates $5.0 million or more; and provided,
further, that if such default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid,
within a period of 10 days from the continuation of such
default beyond the applicable grace period or the occurrence
of such acceleration, as the case may be, an Event of
Default and any consequential acceleration of the Notes
shall be automatically rescinded, so long as such rescission
does not conflict with such judgment or decree;
(f) a final judgment or final judgments for the
payment of money are entered by a court or courts of
competent jurisdiction against the Company or any of its
Restricted Subsidiaries and such judgment or judgments are
not paid or discharged for a period (during which execution
shall not be effectively stayed) of 60 days, provided that
the aggregate of all such undischarged judgments exceeds
$5.0 million;
(g) the failure of any Guarantor to perform any
covenant set forth in its Subsidiary Guarantee or the
repudiation by any Guarantor of its obligations under its
Subsidiary Guarantee or the unenforceability of any
Subsidiary Guarantee for any reason;
(h) the Company or any Guarantor pursuant to or within
the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii)consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they
become due; or
(i) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Guarantor in an involuntary case;
(ii) appoints a Custodian of the Company or
any Guarantor or for all or substantially all of
the property of the Company or any Guarantor; or
(iii)orders the liquidation of the Company or
any Guarantor;
and the order or decree remains unstayed and in effect for
60 consecutive days.
Section 6.02.Acceleration.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all the Notes to be due and
payable immediately. Upon any such declaration, the Notes shall
become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (h) or (i)
of Section 6.01 hereof occurs with respect to the Company or any
Guarantor, all outstanding Notes shall be due and payable
immediately without further action or notice. The Holders of a
majority in principal amount of the then outstanding Notes by
written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal,
interest, premium or Liquidated Damages, if any, that have become
due solely because of the acceleration) have been cured or
waived.
If an Event of Default occurs by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium
that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to Section 3.07 hereof,
then, upon acceleration of the Notes, an equivalent premium shall
also become and be immediately due and payable, to the extent
permitted by law, anything in this Indenture or in the Notes to
the contrary notwithstanding.
Section 6.03.Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of
principal of and premium, interest and Liquidated Damages, if
any, on the Notes or to enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of
a Note in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04.Waiver of Past Defaults.
Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event
of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of or
premium, interest or Liquidated Damages, if any, on the Notes
(including in connection with an offer to purchase). Upon any
such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent
thereon.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to
any holder of any Notes for or as an inducement to any consent,
waiver or amendment of any terms or provisions of the Indenture
or the Notes, unless such consideration is offered to be paid or
agreed to be paid to all holders of the Notes which so consent,
waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
Section 6.05.Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to
the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee in personal
liability.
Section 6.06.Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer
and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes
do not give the Trustee a direction inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07.Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of
and premium, interest and Liquidated Damages, if any, on the
Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08.Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b)
occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of,
premium, interest and Liquidated Damages, if any, remaining
unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and Liquidated Damages, if any, and such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 6.09.Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10.Priorities.
If the Trustee collects any money pursuant to this Article,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of
all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the Trustee's costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid
on the Notes for principal, premium, interest and Liquidated
Damages, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on the
Notes for principal, premium, interest and Liquidated
Damages, if any, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11.Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01.Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the state-
ments and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii)the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section
7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02.Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented
by the proper Person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of
any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized
or within the rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the
Company.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction.
(g) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article 4 hereof. In
addition, the Trustee shall not be deemed to have knowledge of
any Default or Event of Default except: (1) any Event of Default
occurring pursuant to Section 6.01(a) or 6.01(b) hereof; or (2)
any Default or Event of Default of which is Responsible Officer
shall have received written notification or obtained actual
knowledge.
Section 7.03.Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Company, any Guarantor or any Affiliate of the Company with
the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest
it must eliminate such conflict within 90 days, apply to the SEC
for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
Section 7.04.Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05.Notice of Defaults.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, premium, if any,
or interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests
of the Holders of the Notes.
Section 7.06.Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15
following the Series A/B Issue Date, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that
complies with TIA section 313(a) (but if no event described in TIA
section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also
shall comply with TIA section 313(b)(2) and section 313(b)(1).
The Trustee shall also transmit by mail all reports as required by
TIA section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with
the SEC and each stock exchange on which the Notes are listed in
accordance with TIA section 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07.Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company and the Guarantors shall indemnify the Trustee
against any and all losses, liabilities or expenses incurred by
it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the
Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company, any Guarantor
or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, bad faith or
willful misconduct. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company shall not relieve the
Company or the Guarantors of their obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes.
Such Lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(h) or (i) hereof
occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA
section 313(b)(2) to the extent applicable.
Section 7.08.Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a
Note who has been a Holder of a Note for at least six months,
fails to comply with Section 7.10 hereof, such Holder of a Note
may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
Section 7.09.Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee. As soon
as practicable, the successor Trustee shall mail a notice of its
succession to the Company and the Holders of the Notes.
Section 7.10.Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at
least $100 million as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA section 310(a)(1), (2) and (5). The Trustee
is subject to TIA section 310(b).
Section 7.11.Preferential Collection of Claims Against Company.
The Trustee is subject to TIA section 311(a), excluding any
creditor relationship listed in TIA section 311(b). A Trustee who
has resigned or been removed shall be subject to TIA section
311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01.Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate,
at any time, exercise its rights under either Section 8.02 or
8.03 hereof with respect to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.
Section 8.02.Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have discharged its obligations
with respect to all outstanding Notes, and each Guarantor shall
be deemed to have discharged its obligations with respect to its
Subsidiary Guarantee, on the date the conditions set forth in
Section 8.04 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, and each
Guarantor shall be deemed to have paid and discharged its
Subsidiary Guarantee (which in each case shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in
(a) and (b) below) and to have satisfied all its other
obligations under such Notes or Subsidiary Guarantee and this
Indenture (and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal
of and premium, if any, interest and Liquidated Damages, if any,
on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 2.03, 2.04,
2.07, 2.10 and 4.02 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03.Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and each
Guarantor shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Article 4 (other
than those in Sections 4.01, 4.02, 4.06 and 4.14) and in clauses
(c) and (d) of Section 5.01 hereof on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to
be deemed "outstanding" for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Notes, the Company
and any Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(e) through 6.01(g) hereof
shall not constitute Events of Default.
Section 8.04.Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in
United States dollars, non-callable Government Securities,
or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of
and premium, interest and Liquidated Damages, if any, on the
outstanding Notes on the stated maturity thereof or on the
applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the Series
A/B Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the incurrence of
Indebtedness, all or a portion of the proceeds of which will
be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence or within 30 days
thereof);
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a
default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company
or any of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel (which may be based on such solvency
certificates or solvency opinions as counsel deems necessary
or appropriate) to the effect that the trust funds will not
be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made
by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding creditors of
the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
Section 8.05.Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited
with the Trustee pursuant to Section 8.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal, premium,
if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash
or non-callable Government Securities deposited pursuant to
Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding
Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06.Repayment to Company.
Subject to applicable escheat and abandoned property laws,
any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal
of, premium or Liquidated Damages, if any, or interest on any
Note and remaining unclaimed for two years after such principal,
and premium or Liquidated Damages, if any, or interest has become
due and payable shall be paid to the Company on its request or
(if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a secured
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 8.07.Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in
accordance with Section 8.05 hereof, by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant
to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance
with Section 8.05 hereof; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee
or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01.Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder of a
Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to the Holders of the Notes pursuant to Article
5 hereof;
(d) to secure the Notes pursuant to the requirements
of Section 4.12 or otherwise;
(e) to make any change that would provide any
additional rights or benefits to the Holders of the Notes or
that does not adversely affect the legal rights hereunder of
any Holder of the Note;
(f) to comply with Article 10 hereof; or
(g) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under
the TIA.
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own
rights, duties or immunities under this Indenture or otherwise.
Section 9.02.With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this
Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount
of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender
offer or exchange offer for the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange
offer for the Notes).
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of
the Holders of Notes as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the
Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental indenture unless such
amended or supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in principal amount of the Notes then
outstanding may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed
maturity of any Note or alter any of the provisions with
respect to the redemption of the Notes (except as provided
in Sections 3.09, 4.10 and 4.15 hereof);
(c) reduce the rate of or change the time for payment
of interest on any Note;
(d) waive a Default or Event of Default in the payment
of principal of or premium, interest or Liquidated Damages,
if any, on the Notes (except a rescission of acceleration of
the Notes by the Holders of at least a majority in principal
amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or Events of
Default or the rights of Holders of Notes to receive
payments of principal of or premium, interest or Liquidated
Damages, if any, on the Notes (except as permitted in clause
(g) below);
(g) waive a redemption payment with respect to any
Note (other than a payment required by Sections 4.10 and
4.15 hereof);
(h) alter the ranking of the Notes relative to other
Indebtedness of the Company; or
(i) make any change in the foregoing amendment and
waiver provisions.
Section 9.03.Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in a amended or supplemental Indenture
that complies with the TIA as then in effect.
Section 9.04.Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective,
a consent to it by a Holder of a Note is a continuing consent by
the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of
a Note may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
Section 9.05.Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.06.Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental indenture until the Board of
Directors approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is authorized
or permitted by this Indenture.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01.Subsidiary Guarantee.
Subject to Section 10.06 hereof, the Guarantors hereby,
jointly and severally, unconditionally guarantee to each Holder
of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes held
thereby and the Obligations of the Company hereunder and
thereunder, that: (a) the principal of and premium, interest and
Liquidated Damages, if any, on the Notes will be promptly paid in
full when due, subject to any applicable grace period, whether at
maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal, premium, (to the extent permitted by
law) interest and Liquidated Damages, if any, on the Notes, and
all other payment Obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full
and performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, the same
will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so
due of any amount so guaranteed or any performance so guaranteed
for whatever reason the Guarantors will be jointly and severally
obligated to pay the same immediately. An Event of Default under
this Indenture or the Notes shall constitute an event of default
under the Subsidiary Guarantees, and shall entitle the Holders to
accelerate the Obligations of the Guarantors hereunder in the
same manner and to the same extent as the Obligations of the
Company. The Guarantors hereby agree that their Obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance (other than complete
performance) which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, hereby waives diligence,
presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this
Subsidiary Guarantee will not be discharged except by complete
performance of the Obligations contained in the Notes and this
Indenture. If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by the
Company or any Guarantor to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor agrees
that it shall not be entitled to, and hereby waives, any right of
subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby. Each Guarantor further agrees
that, as between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (a) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of its Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations
guaranteed thereby, and (b) in the event of any declaration of
acceleration of such Obligations as provided in Article 6 hereof,
such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantor for the purpose of its
Subsidiary Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders
under the Subsidiary Guarantees.
Section 10.02.Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section
10.01 hereof, each Guarantor hereby agrees that a notation of
such Subsidiary Guarantee substantially in the form of Exhibit D
hereto shall be endorsed by manual or facsimile signature by an
Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by an Officer of such
Guarantor.
To the extent required by the provisions of Section 4.13
hereof, the Company shall cause each of its Restricted
Subsidiaries to execute a Subsidiary Guarantee substantially in
the form of Exhibit D. Such Subsidiary Guarantee shall be
accompanied by a supplemental indenture substantially in the form
of Exhibit E, along with the Opinion of Counsel and Officers'
Certificate required under Section 9.06 of this Indenture;
provided, however, that any Subsidiary that has been properly
designated as an Unrestricted Subsidiary in accordance with this
Indenture need not execute a Subsidiary Guarantee for so long as
it continues to constitute an Unrestricted Subsidiary.
Each Guarantor hereby agrees that its Subsidiary Guarantee
shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on the Subsidiary Guarantee
no longer holds that office at the time the Trustee authenticates
the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Subsidiary Guarantee set forth in this Indenture on behalf
of the Guarantors.
Section 10.03.Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture shall prohibit a merger between a
Guarantor and another Guarantor or a merger between a Guarantor
and the Company.
(b) No Guarantor shall consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person),
another Person (other than the Company or another Guarantor),
whether or not affiliated with such Guarantor, unless,
(i) subject to the provisions of Section 10.04 hereof, the Person
formed by or surviving any such consolidation or merger (if other
than such Guarantor) assumes all the obligations of such
Guarantor pursuant to a supplemental indenture, substantially in
the form of Exhibit E hereto, under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists; (iii) such Guarantor, or any
Person formed by or surviving any such consolidation or merger,
would have Consolidated Net Worth (immediately after giving
effect to such transaction), equal to or greater than the
Consolidated Net Worth of such Guarantor immediately preceding
the transaction; and (iv) the Company, at the time of such
transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-
quarter period, would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Interest
Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof.
(c) In the case of any such consolidation or merger and
upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit E hereto, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants of this Indenture to be
performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as
if it had been named herein as a Guarantor; provided, however,
that, solely for purposes of computing Consolidated Net Income
for purposes of clause (c) of the first paragraph of Section 4.07
hereof, the Consolidated Net Income of any Person other than the
Company and its Restricted Subsidiaries shall only be included
for periods subsequent to the effective time of such merger or
consolidation. Such successor Person thereupon may cause to be
signed any or all of the Subsidiary Guarantees to be endorsed
upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee.
All of the Subsidiary Guarantees so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at the Series A/B Issue
Date.
Section 10.04.Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the
assets or Capital Stock of any Guarantor, by way of merger,
consolidation or otherwise, then such Guarantor (in the event of
a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or the Person acquiring the property (in the event of
a sale or other disposition of all of the assets of such
Guarantor) shall be released and relieved of any obligations
under its Subsidiary Guarantee; provided, however, that (i) in
the event such transaction constitutes an Asset Sale, the Net
Proceeds from such sale or other disposition are treated in
accordance with the provisions of Section 4.10 hereof and (ii)
the Company is in compliance with all other provisions of this
Indenture applicable to such disposition. Upon delivery by the
Company to the Trustee of an Officers' Certificate to the effect
of the foregoing, the Trustee shall execute any documents
reasonably required in order to evidence the release of any
Guarantor from its Obligation under its Subsidiary Guarantee.
Any Guarantor not released from its Obligations under its
Subsidiary Guarantee shall remain liable for the full amount of
principal of and premium, interest and Liquidated Damages, if
any, on the Notes and for the other Obligations of such Guarantor
under this Indenture as provided in this Article 10.
Section 10.05.Releases Following Designation as an Unrestricted
Subsidiary.
In the event that the Company designates a Guarantor to be
an Unrestricted Subsidiary, then such Guarantor shall be released
and relieved of any obligations under its Subsidiary Guarantee;
provided that such designation is conducted in accordance with
this Indenture.
Section 10.06.Limitation on Guarantor Liability.
For purposes hereof, each Guarantor's liability shall be
limited to the lesser of (a) the aggregate amount of the
Obligations of the Company under the Notes and this Indenture and
(b) the amount, if any, which would not have (i) rendered such
Guarantor "insolvent" (as such term is defined in the Bankruptcy
Law) or (ii) left such Guarantor with unreasonably small capital
at the time its Subsidiary Guarantee of the Notes was entered
into; provided, however, that, it will be a presumption in any
lawsuit or other proceeding in which a Guarantor is a party that
the amount guaranteed pursuant to the Subsidiary Guarantee is the
amount set forth in clause (a) above unless any creditor, or
representative of creditors of such Guarantor, or debtor in
possession or trustee in bankruptcy of the Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of the
Guarantor is the amount set forth in clause (b) above. In making
any determination as to solvency or sufficiency of capital of a
Guarantor in accordance with the previous sentence, the right of
such Guarantor to contribution from other Guarantors, and any
other rights such Guarantor may have, contractual or otherwise,
shall be taken into account.
Section 10.07."Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article 10 shall in
each case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within
its meaning as fully and for all intents and purposes as if such
Paying Agent were named in this Article 10 in place of the
Trustee.
ARTICLE 11
MISCELLANEOUS
Section 11.01.Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA section 318(c), the imposed
duties shall control.
Section 11.02.Notices.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and
delivered in person or mailed by first class mail (registered or
certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company or the Guarantors:
Trico Marine Services, Inc.
2401 Fountain View, Suite 626
Houston, Texas 77057
Attention: Victor M. Perez
Telecopier No.: (713) 780-0062
With a copy to:
Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P.
201 St. Charles Avenue, Suite 5100
New Orleans, Louisiana 70170-5100
Attention: William B. Masters
Telecopier No.: (504) 582-8430
If to the Trustee:
(1) For payment, registration, transfer and exchange
of the Notes:
By Hand:
Texas Commerce Bank National Association
One Main Place
1201 Main Street, 18th Floor
Dallas, Texas 75202
Telephone No.: (214) 672-5125 or (800) 275-2048
Telecopier No.: (214) 672-5746
Attention: Registered Bond Events
By Mail:
Texas Commerce Bank National Association
P.O. Box 2320
Dallas, Texas 75221-2320
Telephone No.: (214) 672-5125 or (800) 275-2048
Telecopier No.: (214) 672-5746
Attention: Registered Bond Events
(2) For all other communications relating the Notes:
Texas Commerce Bank National Association
Global Trust Services
600 Travis Street, Suite 1150
Houston, Texas 77002
Telephone No.: (713) 216-5811
Telecopier No.: (713) 216-5476
Attention: Ms. Mauri J. Cowen
If to the Paying Agent:
Texas Commerce Bank National Association
c/o Texas Commerce Trust Company of New York
55 Water Street, North Building
Room 234, Windows 20 and 21
New York, New York 10041
Telephone No.: (212) 638-4020 or 638-4021
Telecopier No.: (212) 638-7267
The Company, any of the Guarantors or the Trustee, by notice
to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and the next Business
Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed
to any Person described in TIA section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with
respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same
time.
Section 11.03.Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA section 312(b) with
other Holders with respect to their rights under this Indenture or
the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA section 312(c).
Section 11.04.Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 11.05 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 11.05 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05.Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIA section 314(a)(4)) shall
comply with the provisions of TIA section 314(e) and shall include:
(a) a statement that the Person making such certi-
ficate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been
satisfied.
Section 11.06.Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 11.07.No Personal Liability of Directors, Officers,
Employees and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as
such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, the Subsidiary Guarantees, this
Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting
a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Section 11.08.Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
Section 11.09.No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Restricted Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 11.10.Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11.Severability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 11.12.Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 11.13.Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[Signatures on following page]
-1-
SIGNATURES
Trico Marine Services, Inc.
By
Name:
Title:
Trico Marine Assets, Inc.
By
Name:
Title:
Trico Marine Operators, Inc.
By
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By
Mauri J. Cowen
Vice President and Trust
Officer
-1-
A-1-1
Exhibit A-1
(Face of Note)
8 1/2% Senior Notes due 2005, [Series C] [Series D]
No. $_______________
CUSIP NO.
Trico Marine Services, Inc.
promises to pay to __________ or registered assigns, the principal sum
of ___________ Dollars on August 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
(SEAL)
Trico Marine Services, Inc.
By__________________________________
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred
to in the within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee
By________________________________
Authorized Signatory
Dated: ______________________
(Back of Note)
8 1/2% Senior Notes due 2005, [Series C][Series D]
[Unless and until it is exchanged in whole or in part for Notes
in definitive form, this Note may not be transferred except as a whole
by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository
or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository. Unless this certificate is
presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or such
other name as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL in as much as the registered owner hereof, Cede & Co., has
an interest herein.][1]
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)
(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.][2]
**FOOTNOTES**
[1]:. This paragraph should be included only if the Note is issued in global
form.
[2]:. This paragraph should be removed upon the exchange of Series C Notes for
Series D Notes in the Exchange Offer or upon the transfer of the Series C
Notes that have been sold pursuant to the terms of the Shelf Registration
contemplated by the Registration Rights Agreement.
1. Interest. Trico Marine Services, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal
amount of this Note at 8 1/2% per annum from November __, 1997 until
maturity and shall pay the Liquidated Damages payable pursuant to
Section 5 of the Registration Rights Agreement referred to below. The
Company will pay interest and Liquidated Damages, if any, semi-
annually in arrears on February 1 and August 1 of each year,
commencing February 1, 1998, or if any such day is not a Business Day,
on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date
of original issuance; provided that if there is no existing Default or
Event of Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date, except in the case of the
original issuance of Notes, in which case interest shall accrue from
the date of authentication. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at
a rate that is the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) and Liquidated Damages to the
Persons who are registered Holders of Notes at the close of business
on the January 15 or July 15 next preceding the Interest Payment Date,
even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, interest and Liquidated Damages,
if any, at the office or agency of the Company maintained for such
purpose within the City and State of New York, or, at the option of
the Company, payment of interest and Liquidated Damages may be made by
check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal
of and interest, premium and Liquidated Damages on all Global Notes
and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts.
3. Paying Agent and Registrar. Initially, Texas Commerce Bank
National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of November __, 1997 ("Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of
such terms. The Notes are general unsecured obligations of the
Company limited to $100,000,000 aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5,
the Company shall not have the option to redeem the Notes prior to
August 1, 2001. Thereafter, the Company shall have the option to
redeem the Notes, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning
on August 1 of the years indicated below:
Year Percentage
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5 the Company may at any time prior to August 1, 2001, at
its option, redeem the Notes, in whole or in part, at the Make-Whole
Price plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the redemption date. In addition, at any time prior to
July 17, 2000, the Company may redeem up to 35% of the aggregate
principal amount of Notes originally issued at a redemption price of
108.5% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the redemption
date, with the net cash proceeds of one or more Qualified Equity
Offerings; provided that (a) at least $65 million in aggregate
principal amount of Notes remains outstanding immediately after the
occurrence of each such redemption and (b) each such redemption shall
occur within 60 days of the date of the closing of each such Qualified
Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder's Notes at a purchase price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the
transaction that constitutes the Change of Control and setting forth
the procedures governing the Change of Control Offer as required by
the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, within 30 days of each date on which the aggregate amount
of Excess Proceeds exceeds $5.0 million, the Company shall commence an
offer to all Holders of Notes and Series A/B Notes (as "Asset Sale
Offer") pursuant to Section 3.09 of the Indenture to purchase the
maximum principal amount of Notes and Series A/B Notes (taken together
for the purposes of this paragraph) that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100%
of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase, in
accordance with the procedures set forth in the Indenture; provided,
however, that, if the Company is required to apply such Excess
Proceeds to repurchase, or to offer to repurchase, any Pari Passu
Indebtedness, the Company shall only be required to offer to
repurchase the maximum principal amount of Notes and Series A/B Notes
that may be purchased out of the amount of such Excess Proceeds
multiplied by a fraction, the numerator of which is the aggregate
principal amount of Notes and Series A/B Notes outstanding and the
denominator of which is the aggregate principal amount of Notes and
Series A/B Notes outstanding plus the aggregate principal amount of
Pari Passu Indebtedness outstanding. To the extent that the aggregate
amount of Notes and Series A/B Notes tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company (or such
Subsidiary) may use such deficiency for general corporate purposes. If
the aggregate principal amount of Notes and Series A/B Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes and Series A/B Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes and Series A/B Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased). Holders of Notes and Series A/B Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from
the Company prior to any related purchase date and may elect to have
such Notes and Series A/B Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes and the Series A/B Notes.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or
register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, it need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may
be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes, and any existing default or
compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes. Without the consent of any
Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes; (ii) default in payment when due of the
principal of or premium, if any, on the Notes; (iii) failure by the
Company to comply with Section 4.10, 4.15 or 5.01 of the Indenture;
(iv) failure by the Company for 60 days after notice to comply with
any of its other agreements in the Indenture or the Notes; (v) default
under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists or is created after the Series A/B Issue Date,
which default (a) is caused by a failure to pay principal of or
premium or interest on such Indebtedness prior to the expiration of
any grace period provided in such Indebtedness (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $5.0 million or
more; and provided, further, that if such default is cured or waived
or any such acceleration rescinded, or such Indebtedness is repaid
within a period of 10 days from the continuation of such default
beyond the applicable grace period or the occurrence of such
acceleration, as the case may be, an Event of Default and any
consequential acceleration of the Notes shall be automatically
rescinded, so long as said rescission does not conflict with such
judgment or decree; (vi) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments aggregating in excess
of $5.0 million, which judgments are not paid, discharged or stayed
for a period of 60 days; (vii) failure by any Guarantor to perform any
covenant set forth in its Subsidiary Guarantee, or the repudiation by
any Guarantor of its obligations under its Subsidiary Guarantee or the
unenforceability of any Subsidiary Guarantee against a Guarantor for
any reason; and (viii) certain events of bankruptcy or insolvency with
respect to the Company or any Guarantor. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy
or insolvency, all outstanding Notes will become due and payable
without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or
Event of Default in the payment of the principal of or premium,
interest or Liquidated Damages, if any, on the Notes. The Company is
required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
13. Defeasance. The Notes are subject to defeasance upon the
terms and conditions specified in the Indenture.
14. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such,
shall not have any liability for any obligations of the Company or any
Guarantor under the Notes, the Subsidiary Guarantees or the Indenture
or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
18. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of Notes
under the Indenture, Holders of Transferred Restricted Securities
shall have all the rights set forth in the Registration Rights
Agreement dated as of November __, 1997, among the Company, the
Guarantors and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
19. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Trico Marine Services, Inc.
2401 Fountain View
Suite 626
Houston, Texas 77057
Attention: Corporate Secretary
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign
and transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box
below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.15 of the Indenture,
state the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No.:
Signature Guarantee:
SCHEDULE OF EXCHANGES OF NOTES[3]
The following exchanges of a part of this Global Note for other Notes
have been made:
Date of Amount of Amount of Principal Signature
Exchange decrease in increase in Amount of of
Principal Principal this Global authorized
Amount of Amount of Note officer of
this Global this Global following Trustee or
Note Note such Note
decrease Custodian
(or
increase)
**FOOTNOTES**
[3]:. This should be included only if the Note is issued in
global form.
Exhibit D
SUBSIDIARY GUARANTEE
Subject to Section 10.06 of the Indenture,
each Guarantor hereby, jointly and severally,
unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee
and to the Trustee and its successors and
assigns, irrespective of the validity and
enforceability of the Indenture, the Notes and
the Obligations of the Company under the Notes
or under the Indenture, that: (a) the principal
of, premium, if any, interest and Liquidated
Damages, if any, on the Notes will be promptly
paid in full when due, subject to any
applicable grace period, whether at maturity,
by acceleration, redemption or otherwise, and
interest on overdue principal, premium, if any,
(to the extent permitted by law) interest on
any interest, if any, and Liquidated Damages,
if any, on the Notes and all other payment
Obligations of the Company to the Holders or
the Trustee under the Indenture or under the
Notes will be promptly paid in full and
performed, all in accordance with the terms
thereof; and (b) in case of any extension of
time of payment or renewal of any Notes or any
of such other payment Obligations, the same
will be promptly paid in full when due or
performed in accordance with the terms of the
extension or renewal, subject to any applicable
grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing
payment when so due of any amount so guaranteed
or any performance so guaranteed for whatever
reason, the Guarantors will be jointly and
severally obligated to pay the same
immediately. An Event of Default under the
Indenture or the Notes shall constitute an
event of default under this Subsidiary
Guarantee, and shall entitle the Holders to
accelerate the Obligations of the Guarantors
hereunder in the same manner and to the same
extent as the Obligations of the Company. The
Guarantors hereby agree that their Obligations
hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability
of the Notes or the Indenture, the absence of
any action to enforce the same, any waiver or
consent by any Holder with respect to any
provisions hereof or thereof, the recovery of
any judgment against the Company, any action to
enforce the same or any other circumstance
which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of
claims with a court in the event of insolvency
or bankruptcy of the Company, any right to
require a proceeding first against the Company,
protest, notice and all demands whatsoever and
covenants that this Subsidiary Guarantee will
not be discharged except by complete
performance of the Obligations contained in the
Notes and the Indenture. If any Holder or the
Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or
any Note Custodian, Trustee, liquidator or
other similar official acting in relation to
either the Company or the Guarantors, any
amount paid by the Company or any Guarantor to
the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore
discharged, shall be reinstated in full force
and effect. Each Guarantor agrees that it
shall not be entitled to, and hereby waives,
any right of subrogation in relation to the
Holders in respect of any Obligations
guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on
the other hand, (a) the maturity of the
Obligations guaranteed hereby may be
accelerated as provided in Article 6 of the
Indenture for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such
acceleration in respect of the Obligations
guaranteed thereby, and (b) in the event of any
declaration of acceleration of such Obligations
as provided in Article 6 of the Indenture, such
Obligations (whether or not due and payable)
shall forthwith become due and payable by the
Guarantor for the purpose of this Subsidiary
Guarantee. The Guarantors shall have the right
to seek contribution from any non-paying
Guarantor so long as the exercise of such right
does not impair the rights of the Holders under
the Subsidiary Guarantees.
The obligations of the Guarantor to the
Holders and to the Trustee pursuant to this
Subsidiary Guarantee and the Indenture are
expressly set forth in Article 10 of the
Indenture, and reference is hereby made to such
Indenture for the precise terms of this
Subsidiary Guarantee. The terms of Articles 10
of the Indenture are incorporated herein by
reference. This Subsidiary Guarantee is
subject to release as and to the extent
provided in Sections 10.04 and 10.05 of the
Indenture.
This is a continuing Guarantee and shall
remain in full force and effect and shall be
binding upon each Guarantor and its respective
successors and assigns to the extent set forth
in the Indenture until full and final payment
of all of the Company's Obligations under the
Notes and the Indenture and shall inure to the
benefit of the successors and assigns of the
Trustee and the Holders and, in the event of
any transfer or assignment of rights by any
Holder or the Trustee, the rights and
privileges herein conferred upon that party
shall automatically extend to and be vested in
such transferee or assignee, all subject to the
terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a
guarantee of collection.
This Subsidiary Guarantee shall not be
valid or obligatory for any purpose until the
certificate of authentication on the Note upon
which this Subsidiary Guarantee is noted shall
have been executed by the Trustee or an
authenticating agent under the Indenture by the
manual signature of one of its authorized
officers.
For purposes hereof, each Guarantor's
liability shall be limited to the lesser of (i)
the aggregate amount of the Obligations of the
Company under the Notes and the Indenture and
(ii) the amount, if any, which would not have
(A) rendered such Guarantor "insolvent" (as
such term is defined in the Bankruptcy Law and
in the Debtor and Creditor Law of the State of
New York) or (B) left such Guarantor with
unreasonably small capital at the time its
Subsidiary Guarantee of the Notes was entered
into; provided that, it will be a presumption
in any lawsuit or other proceeding in which a
Guarantor is a party that the amount guaranteed
pursuant to the Subsidiary Guarantee is the
amount set forth in clause (i) above unless any
creditor, or representative of creditors of
such Guarantor, or debtor in possession or
trustee in bankruptcy of such Guarantor,
otherwise proves in such a lawsuit that the
aggregate liability of the Guarantor is limited
to the amount set forth in clause (ii) above.
The Indenture provides that, in making any
determination as to the solvency or sufficiency
of capital of a Guarantor in accordance with
the previous sentence, the right of such
Guarantors to contribution from other
Guarantors and any other rights such Guarantors
may have, contractual or otherwise, shall be
taken into account.
Capitalized terms used herein have the
same meanings given in the Indenture unless
otherwise indicated.
[GUARANTORS]
By__________________________________
Name:
Title:
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
$100,000,000
8 1/2% Senior Notes due 2005, Series C
REGISTRATION RIGHTS AGREEMENT
Dated as of November 14, 1997
JEFFERIES & COMPANY, INC.
BEAR, STEARNS & CO. INC.
BANCBOSTON SECURITIES INC.
This Registration Rights Agreement (this "Agreement") is
made and entered into as of November 14, 1997 by and among Trico
Marine Services, Inc., a Delaware corporation (the "Company"),
Trico Marine Assets, Inc. and Trico Marine Operators, Inc. (each
a "Guarantor" and, collectively, the "Guarantors"), and
Jefferies & Company, Inc., Bear, Stearns & Co. Inc. and
BancBoston Securities Inc. (the "Initial Purchasers"), who have
agreed to purchase $100,000,000 aggregate principal amount of the
Company's 8 1/2% Senior Notes due 2005, Series C (the "Series C
Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated November 6, 1997 (the "Purchase Agreement"), by and among
the Company, the Guarantors and the Initial Purchasers. In order
to induce the Initial Purchasers to purchase the Series C Notes,
the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Series C Notes are
originally issued under the Indenture.
Commission: The Securities and Exchange Commission.
Consummate: The Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the Act
of the Exchange Offer Registration Statement relating to the
Series D Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Series D Notes in
the same aggregate principal amount as the aggregate
principal amount of Series C Notes that were tendered by
Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series C
Notes, each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company under
the Act of the Series D Notes pursuant to a Registration
Statement pursuant to which the Company offers the Holders
of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Series D
Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer,
including the related Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series C Notes (i) to certain
"qualified institutional buyers," as such term is defined in
Rule 144A under the Act, (ii) to certain institutional
"accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act
("Accredited Institutions") and (iii) outside the United
States to certain non-U.S. Persons meeting the requirements
of Rule 904 under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of November 14,
1997, among the Company, Texas Commerce Bank National
Association, as trustee (the "Trustee"), and the Guarantors,
pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and
the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series C Notes and the Series D Notes.
Person: An individual, partnership, corporation,
trust, limited liability company or unincorporated
organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment
Date relating to Notes, each Person who is a Holder of Notes
on the record date with respect to the Interest Payment Date
on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company relating to (a) an offering of Series D Notes
and the Subsidiary Guarantees pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement,
in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by
reference therein.
Series D Notes: The Company's 8 1/2% Senior Notes due
2005, Series D to be issued pursuant to the Indenture and
the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
Subsidiary Guarantees: The joint and several
guarantees of the Company's payment obligations under the
Notes by the Guarantors.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series C Note
until (i) the date on which such Series C Note has been
exchanged by a person other than a Broker-Dealer for a
Series D Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a
Series C Note for a Series D Note, the date on which such
Series D Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Series C Note has
been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the
date on which such Series C Note is distributed to the
public pursuant to Rule 144 under the Act or may be
distributed to the public pursuant to Rule 144(k) under the
Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to
an underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), the
Company and the Guarantors shall (i) cause to be filed with the
Commission on or before the 60th day after the Closing Date, a
Registration Statement under the Act relating to the Series D
Notes, the Subsidiary Guarantees and the Exchange Offer, (ii) use
their reasonable best efforts to cause such Registration
Statement to become effective on or before the 120th day after
the Closing Date, (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement
to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings in connection
with the registration and qualification of the Series D Notes and
the Subsidiary Guarantees to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit the Exchange Offer
to be Consummated, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate
form under the Act permitting registration of the Series D Notes
to be offered in exchange for the Transfer Restricted Securities
and to permit resales of the Series D Notes held by Broker-
Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange
Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20
business days. The Company and the Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Series D Notes and
the Subsidiary Guarantees shall be included in the Exchange Offer
Registration Statement. The Company and the Guarantors shall use
their reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in any
event on or prior to the 180th day after the Closing Date.
(c) The Company and the Guarantors shall indicate in a
"Plan of Distribution" section within the Prospectus contained in
the Exchange Offer Registration Statement that any Broker-Dealer
who holds Notes that are Transfer Restricted Securities and that
were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company) may
exchange such Series C Notes pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with
any resales of the Series D Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit
such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy
after the date of this Agreement.
The Company and the Guarantors shall use their
reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes
acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of one year from the
date on which the Exchange Offer Registration Statement is
declared effective.
The Company and the Guarantors shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such one-year period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the
Guarantors are not required to file an Exchange Offer
Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) any Holder of
Transfer Restricted Securities notifies the Company prior to the
20th day following the Consummation of the Exchange Offer (A)
that such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer or (B) that such
Holder may not resell the Series D Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration
Statement is not available for such resales by such Holder, then
the Company and the Guarantors shall use their reasonable best
efforts to:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 60th day after the
date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement and (2)
the 60th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) above (such earliest date being
the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 60th
day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their reasonable best
efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time,
for a period of at least two years following the Closing Date or,
if earlier, until the Shelf Registration Statement terminates
when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 20 business days after receipt
of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities
shall be entitled to Liquidated Damages pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information.
Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the
information previously furnished to the Company by such Holder
not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement
to be filed is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any such
Registration Statement has not been declared effective by the
Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target
Date"), whether or not the Company and the Guarantors have
breached any obligations to use their reasonable best efforts to
cause any such Registration Statement to be declared effective,
(iii) the Exchange Offer has not been Consummated within 180 days
of the Closing Date with respect to the Exchange Offer
Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective on or
prior to the Effectiveness Target Date (each such event referred
to in clauses (i) through (iv), a "Registration Default"), the
Company and the Guarantors hereby jointly and severally agree to
pay liquidated damages to each Holder of Transfer Restricted
Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an
amount equal to $.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder for each week
or portion thereof that the Registration Default continues. The
amount of the liquidated damages shall increase by an additional
$.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a
maximum amount of liquidated damages of $.20 per week per $1,000
principal amount of Transfer Restricted Securities. All accrued
liquidated damages shall be paid to Record Holders by the Company
by wire transfer of immediately available funds or by federal
funds check on each Damages Payment Date. Following the cure of
all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of liquidated damages with
respect to such Transfer Restricted Securities will cease.
All obligations of the Company and the Guarantors set forth
in the preceding paragraph that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall
have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Guarantors shall
comply with all of the provisions of Section 6(c) below, shall
use their reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer
is permitted by applicable law, the Company and the
Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company
and the Guarantors to Consummate the Exchange Offer for such
Series C Notes. The Company and the Guarantors hereby agree
to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
The Company and the Guarantors hereby agree, however, to (A)
participate in telephonic conferences with the Commission,
(B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that the Exchange
Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission
staff of such submission.
(ii) The Initial Purchasers, for themselves and on
behalf of the Holders, hereby acknowledge and agree, and
each Holder by its purchase of Transfer Restricted
Securities shall be deemed to have acknowledged and agreed,
that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated
in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause
(i) above) and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a
secondary resale transaction should be covered by an
effective registration statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Series D
Notes obtained by such Holder in exchange for Series C Notes
acquired by such Holder directly from the Company.
(iii)Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available
June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a
representation that neither the Company nor any Guarantor
has entered into any arrangement or understanding with any
Person to distribute the Series D Notes to be received in
the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the
Exchange Offer is acquiring the Series D Notes in its
ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the Series D Notes received in the Exchange
Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, if required, the Company and the
Guarantors shall comply with all the provisions of Section 6(c)
below and shall use their reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or
methods of distribution thereof and, pursuant thereto, the
Company and the Guarantors will prepare and file with the
Commission in accordance with Section 4(a) hereof a Shelf
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales
of Notes by Broker-Dealers), the Company and the Guarantors
shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide
all requisite financial statements (including, if required
by the Act or any regulation thereunder, financial
statements of the Guarantors) for the period specified in
Section 3(b) or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B)
not to be effective and usable for the resale of Transfer
Restricted Securities during the period required by this
Agreement, the Company and the Guarantors shall file
promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause
(A) or (B), use their reasonable best efforts to cause such
amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3(b) or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Act, and to comply
fully with the applicable provisions of Rules 424 and 430A
under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(iii)advise the underwriter(s), if any, and selling
Holders promptly and, if requested by any such Person, to
confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by
any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or
the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the
Guarantors shall use their reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (but
excluding any documents incorporated by reference as a
result of the Company's periodic reporting requirements
under the Exchange Act), and neither the Company nor any
Guarantors shall file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (excluding all such
documents incorporated by reference as a result of the
Company's periodic reporting requirements under the Exchange
Act) to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within five
business days after the receipt thereof. A selling Holder
or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission;
(v) promptly following the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the selling Holders and to the underwriter(s), if any, make
the Company's representatives available for discussion of
such document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if
any, reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or
any of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company
and the Guarantors and cause the Company's and the
Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and
prior to its effectiveness; provided, however, that the
foregoing inspection and information gathering (i) shall be
coordinated on behalf of the selling Holders, underwriters,
or any representative thereof, by one counsel, who shall be
Vinson & Elkins L.L.P. or such other counsel as may be
chosen by the Holders of a majority in principal amount of
Transfer Restricted Securities and (ii) shall not be
available for any such Holder who does not agree in writing
to hold such information in confidence.
(vii)if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if
any, may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount
of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii)furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons
reasonably may request; the Company and the Guarantors
hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto; provided that such use of
the Prospectus and any amendment or supplement thereto and
such offering and sale conforms to the Plan of Distribution
set forth in the Prospectus and complies with the terms of
this Agreement and all applicable laws and regulations
thereunder;
(x) in the event of an Underwritten Registration,
enter into such customary agreements (including an
underwriting agreement), make such customary representations
and warranties, deliver such customary documents and
certificates and take all such other customary actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant
to any Shelf Registration Statement contemplated by this
Agreement, all to such extent as may be requested by any
Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Shelf
Registration Statement contemplated by this Agreement; and,
if the registration is an Underwritten Registration, the
Company and the Guarantors shall:
(A) furnish to each selling Holder upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement,
signed on behalf of the Company by two senior
officers, one of whom must be its Chief Financial
Officer, confirming, as of such date, the matters
set forth in paragraphs (a), (c) and (d) of
Section 8 of the Purchase Agreement with respect
to the transactions contemplated by the Shelf
Registration Statement;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement,
of counsel for the Company and the Guarantors,
covering the matters set forth in Exhibit A of the
Purchase Agreement with respect to the
transactions contemplated by the Shelf
Registration Statement, and in any event including
a statement to the effect that such counsel has
participated in conferences with officers and
other representatives of the Company and the
Guarantors, representatives of the independent
accountants of the Company and the Guarantors and
representatives of the Initial Purchasers at which
the contents of the Registration Statement and
related matters were discussed and, although it
does not assume any responsibility for the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement, during the course of such participation
no facts came to its attention that caused such
counsel to believe that the Registration
Statement, at the time such Registration Statement
or any post-effective amendment thereto became
effective, contained any untrue statement of a
material fact or omitted to state any fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus contained in such Registration
Statement as of its date contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading (except as to financial statements and
related notes, the financial statement schedules
and other financial and statistical data included
therein); and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf
Registration Statement, from the Company's
independent accountants if such comfort letter
shall be issuable to the selling Holders in
accordance with the relevant accounting industry
pronouncements, in the customary form and covering
matters of the type customarily covered in comfort
letters by underwriters in connection with primary
underwritten offerings, and affirming the matters
set forth in the comfort letters delivered
pursuant to Section 8(g) of the Purchase
Agreement, without exception; and
(B) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company and the Guarantors pursuant to this clause (x),
if any.
If at any time the representations and warranties of the
Company and the Guarantors contemplated in clause (A)(1)
above cease to be true and correct, the Company shall so
advise the Initial Purchasers and the underwriter(s), if
any, and each selling Holder promptly and, if requested by
any such Person, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders,
the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or
things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor the
Guarantors shall be required to register or qualify as a
foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of
process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xii)issue, upon the request of any Holder of Series C
Notes covered by the Shelf Registration Statement, Series D
Notes, having an aggregate principal amount equal to the
aggregate principal amount of Series C Notes being sold by
such Holder; such Series D Notes to be registered in the
name of the purchaser(s) of such Notes, as the case may be;
in return, the Series C Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii)cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in
such names as the Holders or the underwriter(s), if any, may
reasonably request at least two business days prior to any
sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv)if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the
Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities that are in a form eligible for
deposit with the Depository Trust Company;
(xvi)cooperate and assist in any filings required to be
made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD;
(xvii)otherwise use their reasonable best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need
not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xviii)cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use
their reasonable best efforts to cause the Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xix)cause all Transfer Restricted Securities covered
by the Registration Statement to be listed on each
securities exchange on which the Notes are then listed if
requested by the Holders of a majority in aggregate
principal amount of Series C Notes or the managing
underwriter(s), if any; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will keep such notice
confidential and forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
6(c)(xiv) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof or shall have received
the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the
Guarantors' performance of or compliance with this Agreement will
be borne by the Company and the Guarantors, regardless of whether
a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holder with
the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be
required by the rules and regulations of the NASD)); (ii) all
fees and expenses of compliance with federal securities and state
Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Series D Notes to be
issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection
with listing Notes on a national securities exchange or automated
quotation system, if any; and (vi) all fees and disbursements of
independent public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company and the Guarantors will, in any event, bear
their internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts,
retained by the Company or any Guarantor. The Company shall not
be responsible for any other expenses or costs, including but not
limited to commissions, fees and discounts of underwriters,
brokers, dealers and agents.
(b) In connection with any Registration Statement required
by this Agreement (excluding the Exchange Offer Registration
Statement), the Company and the Guarantors will reimburse the
Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees
and disbursements of not more than one counsel, who shall be
Vinson & Elkins L.L.P. or such other counsel as may be chosen by
the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder, (ii) each
Initial Purchaser, (iii) each person, if any, who controls any
Holder or Initial Purchaser within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act and (iii) the
respective officers, directors, partners, employees,
representatives and agents of any Holder or Initial Purchaser or
any controlling person (any person referred to in clauses (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), to the fullest extent lawful, from and against any and
all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys' fees and any
and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or in any supplement
thereto or amendment thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and the
Guarantors will not be liable in any such case to the extent, but
only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
the any of the Holders expressly for use therein. This indemnity
agreement will be in addition to any liability that the Company
and the Guarantors may otherwise have, including under this
Agreement.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the
Company, each of the Guarantors and each person, if any, who
controls the Company or any Guarantor within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and
each of their respective officers, directors, employers,
partners, representatives and agents to the same extent as the
foregoing indemnity from the Company and the Guarantors to each
of the Indemnified Holders, but only with respect to information
relating to such Holder furnished in writing by such Holder for
use in any Registration Statement, or in any amendment thereof or
supplement thereto; provided, however, that in no case shall any
selling Holder be liable or responsible for any amount in excess
of proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification
obligation. This indemnity will be in addition to any liability
that the Holders may otherwise have, including under this
Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to
be sought in writing of the commencement thereof (but the failure
so to notify an indemnifying party shall not relieve it from any
liability that it may have under this Section 8 or otherwise
except to the extent that it has been prejudiced in any material
respect by such failure). In case any such action is brought
against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect
by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party,
to assume and control the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right
to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that
there may be defenses available to it that are different from or
additional to those available to one or all of the indemnifying
parties (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees
and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under
subsection (a) or (b) above shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for
all indemnified parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without
its prior written consent; provided that such consent was not
unreasonably withheld.
SECTION 9. CONTRIBUTION
In order to provide for contribution in circumstances in
which the indemnification provided for in Section 8 is for any
reason held to be unavailable or is insufficient to hold harmless
a party indemnified thereunder, the Company and the Guarantors,
on the one hand, and the Holders on the other hand, shall
contribute to the aggregate losses, claims, damages, liabilities
and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claims asserted, but
after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the
Guarantors, any contribution received by the Company and the
Guarantors from persons, other than a Holder, who may also be
liable for contribution, including persons who control the
Company and the Guarantors within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act) to which the
Company, the Guarantors or any Holder may be subject, (i) in such
proportion as is appropriate to reflect the relative fault of the
Company and the Guarantors, on one hand, and each Holder, on the
other hand, in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or
expenses, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative fault referred to in clause (i)
above but also other relevant equitable considerations. The
relative fault of the Company and the Guarantors, on one hand,
and of each Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company, the Guarantors or such Holder and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company,
the Guarantors and each Holder of Transfer Restricted Securities
agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation that does not take into
account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 9, (i) in no case
shall any Holder be required to contribute any amount in excess
of the amount by which the proceeds received by such Holder upon
the sale of the Transfer Restricted Securities giving rise to
such obligation exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission and
(ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9,
(A) each person, if any, who controls any of the Holders within
the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (B) the respective officers, directors,
partners, employees, representatives and agents of such Holder or
any controlling person shall have the same rights to contribution
as the Holders, and each person, if any, who controls the Company
or any Guarantor within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Company and the Guarantors, subject in each
case to clauses (i) and (ii) of this Section 9. Any party
entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made
against another party or parties under this Section 9, notify
such party or parties from whom contribution may be sought, but
the failure to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 9 or
otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its prior written
consent; provided that such written consent was not unreasonably
withheld.
SECTION 10.RULE 144A
The Company and the Guarantors hereby agree with each
Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 11.PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 12.SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering. In
any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer
the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided that such investment bankers
and managers must be reasonably satisfactory to the Company.
SECTION 13.MISCELLANEOUS
(a) Remedies. The Company and the Guarantors agree that
monetary damages (including the liquidated damages contemplated
hereby) would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate; provided that
the Liquidated Damages contemplated hereby shall be the exclusive
remedy for any such breach of Section 3 or 4 of this agreement.
(b) No Inconsistent Agreements. The Company and the
Guarantors shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
the holders of the Company's or any of the Guarantor's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the
Guarantors shall not take any action with respect to the Notes
that would materially and adversely affect the ability of the
Holders to Consummate the Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities
being tendered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company or any Guarantor:
Trico Marine Services, Inc.
2401 Fountain View, Suite 626
Houston, Texas 77057
Telecopier No.: (713) 780-0062
Attention: Corporate Secretary
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P.
201 St. Charles Avenue, Suite 5100
New Orleans, Louisiana 70170-5100
Telecopier No.: (504) 582-8430
Attention: William B. Masters
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to
the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the
need for an express assignment, the successors and assigns of
subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or
be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
[Signature page to follow]
VEHOU05:68702.1 -1-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Trico Marine Services, Inc.
By
Victor M. Perez
Vice President and Chief
Financial Officer
Trico Marine Assets, Inc.
By
Victor M. Perez
Vice President and Chief
Financial Officer
Trico Marine Operators, Inc.
By
Victor M. Perez
Vice President and Chief
Financial Officer
Accepted and agreed to as of
the date first above written:
Jefferies & Company, Inc.
Bear, Stearns & Co. Inc.
BancBoston Securities Inc.
by: Jefferies & Company, Inc.
on behalf of each of the initial purchasers
By
Jeffrey J. Hewitt
Managing Director
VEHOU05:68702.1 -1-
