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) July 21, 1997
TRICO MARINE SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-28316 72-1252405
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
250 North American Court, Houma, Louisiana 70363
(Address of principal executive offices) (Zip Code)
(504) 851-3833
(Registrant's telephone number, including area code)
610 Palm Street, Houma, Louisiana 70364
(Former name or former address, if changed since last report.)
Items 2 and 5. Acquisition or Disposition of Assets; Other
Events
On July 21, 1997, Trico Marine Services, Inc. (the
"Company"), completed the acquisition of eleven supply vessels
for an aggregate of $62.0 million in cash. The Company will
purchase a 225-foot supply vessel, which is in the final stages
of a major upgrade by its current owner, for $7.0 million when
the upgrade is completed to complete this acquisition. There
are no material relationships between the seller or any of its
affiliates and the Company or any of the Company's affiliates,
directors, officers or associates of any of the foregoing.
The eleven supply vessels acquired include two 205-foot
supply boats, three 190-foot supply boats and six 180-foot
supply boats. The Company did not acquire any of the
customers, contracts, charters or routes historically
associated with these vessels as part of the acquisition. The
Company took possession of the acquired vessels without their
being subject to any contracts that were related to the
historical revenue or cost associated with the vessels. These
vessels have been marketed by the Company's sales force on a
similar basis as the other vessels in the Company's fleet and
on charter terms currently prevailing. The vessels have been
remarketed under charter terms customary in the industry that
provide for cancellation on short notice. Due to the lack of
continuity between the historical management of the vessels and
their management and control by the Company, management
believes that the historical results of operations of the
vessels do not reflect the future prospects of the vessels
under the Company's management and that such information would
not be relevant to investors. As a result of this acquisition
and several other acquisitions completed by the Company in
fiscal 1997, the Company expects its revenues to be
significantly higher in future periods than in prior periods.
On July 21, 1997, the Company completed the private
placement of $110,000,000 of the Company's 8 1/2% Series A Senior
Notes due 2005 (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 $106.1 million. The Company used
$62.0 million of the net proceeds from the offering to finance
the acquisition of the eleven supply boats, $37.1 million to
repay outstanding indebtedness under the Company's $65.0
million revolving credit facility, and intends to use the
remaining $7.0 million to fund the acquisition of the remaining
225-foot supply vessel.
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% Series B Senior Notes due 2005,
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 Series B Senior Notes by holders thereof.
Item 7. Financial Statements and Exhibits.
(a) No financial statements are filed with this report,
as the acquired vessels do not constitute a business within the
meaning of Rule 11-01 of Regulation S-X.
(b) Exhibits
3.1 Amended and Restated Certificate of Incorporation of
the Company.
3.2 Bylaws of the Company, as amended.
4.1 Indenture dated July 21, 1997.
4.2 Form of Note.
10.1 Vessel Purchase Agreement dated as of June 18,
1997.
10.2 Amendment No. 5 to the Company's Revolving
Credit Agreement dated July 16, 1997.
10.3 Registration Rights Agreement dated July 21,
1997.
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: July 31, 1997
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered
Pages
- ----------- ----------- ------------
3.1 Amended and Restated Certificate
of Incorporation of the Company.
3.2 Bylaws of the Company, as amended.
4.1 Indenture dated July 21, 1997.
4.2 Form of Note.
10.1 Vessel Purchase Agreement dated
as of June 18, 1997.
10.2 Amendment No. 5 to the Company's
Revolving Credit Agreement dated
July 16, 1997.
10.3 Registration Rights Agreement
dated July 21, 1996.
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
TRICO MARINE SERVICES, INC.
ARTICLE I
Name
The name of this corporation is Trico Marine Services,
Inc. (the "Corporation").
ARTICLE II
Registered Office and Registered Agent
The address of the Corporation's registered office in the
State of Delaware and its registered agent at such address is:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
ARTICLE III
Purpose
The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under
the DGCL.
ARTICLE IV
Capital
1. Authorized Stock. The Corporation shall be
authorized to issue an aggregate of 45,000,000 shares of
capital stock, of which 40,000,000 shares shall be Common
Stock, $0.01 par value per share (the "Common Stock"), and
5,000,000 shall be Preferred Stock, $0.01 par value per share
(the "Preferred Stock").
2. Preferred Stock. Preferred Stock may be issued from
time to time in one or more series. All shares of any one
series of Preferred Stock shall be identical except as to the
dates of issue and the dates from which dividends on shares of
the series issued on different dates will cumulate if
cumulative.
(a) Authority is hereby expressly granted to the
Board of Directors to authorize the issue of one or more
series of Preferred Stock, and to fix by resolution or
resolutions providing for the issue of each such series
the voting powers, designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of
such series, to the full extent now or hereafter permitted
by law, including, without limitation, the following:
(1) the number of shares of such series, which
may subsequently be increased, except as otherwise
provided by the resolution or resolutions of the
Board of Directors providing for the issue of such
series, or decreased, to a number not less than the
number of shares then outstanding, by resolution or
resolutions of the Board of Directors, and the
distinctive designation thereof;
(2) the dividend rights of such series, the
preferences, if any, over any other class or series
of stock, or of any other class or series of stock
over such series, as to dividends, the extent, if
any, to which shares of such series will be entitled
to participate in dividends with shares of any other
series or class of stock, whether dividends on shares
of such series will be fully, partially or
conditionally cumulative, or a combination thereof,
and any limitations, restrictions or conditions on
the payment of such dividends;
(3) the rights of such series, and the
preferences, if any, over any other class or series
of stock, or of any other class or series of stock
over such series, in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of
the Corporation and the extent, if any, to which
shares of any such series will be entitled to
participate in such event with any other series or
class of stock;
(4) the time or times during which, the price of
prices at which, and the terms and conditions on
which the shares of such series may be redeemed;
(5) the terms of any purchase, retirement or
sinking funds which may be provided for the shares of
such series; and
(6) the terms and conditions, if any, upon which
the shares of such series will be convertible into or
exchangeable for shares of any other series, class or
classes, or any other securities.
(b) The shares of Preferred Stock shall have no
voting power or voting rights with respect to any matter
whatsoever, except as may be otherwise required by law or
may be provided in the resolution or resolutions of the
Board of Directors creating the series of which such
shares are a part.
(c) No holders of any series of Preferred Stock will
be entitled to receive any dividends thereon other than
those specifically provided for by this Certificate of
Incorporation or the resolution or resolutions of the
Board of Directors providing for the issue of such series
of Preferred Stock, nor will any accumulated dividends on
Preferred Stock bear any interest.
(d) In the event of any liquidation, dissolution or
winding-up of the Corporation, whether voluntary or
involuntary, the holders of Preferred Stock of each series
will be entitled to receive only such amount or amounts as
will have been fixed by this Certificate of Incorporation
or by the resolution or resolutions of the Board of
Directors providing for the issue of such series.
ARTICLE V
Stockholder Action
Action shall be taken by the stockholders only at an
annual or special meeting of stockholders or by action taken by
the unanimous written consent of all of the holders of Capital
Stock that would be entitled to vote thereon if an annual or
special meeting of stockholders had been called for the taking
of such action.
ARTICLE VI
Board of Directors
1. Powers. All of the powers of the Corporation are
hereby conferred upon the Board of Directors of the
Corporation, insofar as such powers may be lawfully vested by
this Certificate of Incorporation in the Board of Directors.
In furtherance and not in limitation of those powers, the Board
of Directors shall have the power to make, adopt, alter, amend
and repeal from time to time the Corporation's Bylaws, subject
to the provisions of Article X, section 2.
2. Number of Directors. Subject to the restriction that
the number of directors shall not be less than the number
required by the DGCL, the number of directors may be fixed from
time to time pursuant to the Corporation's Bylaws; provided,
however, that the number of directors shall not be reduced so
as to shorten the term of any director at the time in office.
3. Classification. The members of the Board of
Directors, other than those who may be elected by the holders
of any one or more series of Preferred Stock voting separately,
shall be classified, with respect to the time during which they
shall hold office, into three classes, designated Class I, II
and III, as nearly equal in number as possible. Any increase
or decrease in the number of directors shall be apportioned by
the Board of Directors so that all classes of directors shall
be as nearly equal in number as possible. At each annual
meeting of stockholders, directors chosen to succeed those
whose terms then expire shall be elected to hold office for a
term expiring at the annual meeting of stockholders held in the
third year following the year of their election and until their
successors are duly elected and qualified.
4. Vacancies. Subject to any requirements of law and
the rights of any class or series of Capital Stock having a
preference over the Common Stock as to dividends or upon
liquidation, and except as provided in Article VI, section 6,
any vacancy on the Board of Directors (including any vacancy
resulting from an increase in the authorized number of
directors or from a failure of the stockholders to elect the
full number of authorized directors) may, notwithstanding any
resulting absence of a quorum of directors, be filled only by
the Board of Directors, acting by vote of both (a) a majority
of the directors then in office and (b) a majority of all the
Continuing Directors, voting as a separate group, and any
director so appointed shall serve until the next stockholders'
meeting held for the election of directors of the class to
which such director shall have been appointed and until his
successor is duly elected and qualified.
5. Removal. Subject to Article VI, section 6, and
notwithstanding any other provisions of this Certificate of
Incorporation or the Corporation's Bylaws, any director or the
entire Board of Directors may be removed at any time, but only
for cause involving fraud or a violation of the duty of loyalty
as determined by a final judgment of a court of competent
jurisdiction, and only at a stockholders' meeting called for
such purpose by the affirmative vote of holders of not less
than 80% of the Voting Stock, voting together as a single
class. At the same meeting in which the stockholders remove
one or more directors, the stockholders may elect a successor
or successors for the unexpired term of the director or
directors removed. Except as set forth in this Article VI,
section 5, directors shall not be subject to removal.
6. Directors Elected by Preferred Stockholders.
Notwithstanding anything in this Certificate of Incorporation
to the contrary, whenever the holders of any one or more series
of Preferred Stock shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the
provisions of this Certificate of Incorporation (as amended
from time to time) fixing the rights and preferences of such
Preferred Stock shall govern with respect to the nomination,
election, term, removal, vacancies or other related matters
with respect to such directors.
ARTICLE VII
Certain Business Combinations
1. Supermajority Vote. In addition to any affirmative
vote otherwise required by law or this Certificate of
Incorporation (notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate of
Incorporation) and except as otherwise expressly provided in
Article VII, section 2:
(a) any merger, consolidation or share exchange of
the Corporation or any Subsidiary with an Interested
Stockholder or with any other corporation, whether or not
itself an Interested Stockholder, which is, or after such
merger, consolidation or share exchange would be, an
Affiliate or Associate of an Interested Stockholder who
was an Interested Stockholder prior to the transaction;
(b) any sale, lease, transfer, exchange, mortgage,
pledge, loan, advance, or other similar disposition (in
one or more series of transactions), with or for the
direct or indirect benefit of any Interested Stockholder
or any Affiliate or Associate thereof, of any assets of
the Corporation or any Subsidiary having, measured at the
time the transaction or transactions are approved by the
Board of Directors, an aggregate book value or Market
Value as of the end of the Corporation's most recently
ended fiscal quarter of 5% or more of the lesser of (i)
the total Market Value of the outstanding stock of the
Corporation or (ii) the Corporation's net worth as of the
end of its most recently ended fiscal quarter;
(c) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or any
Subsidiary;
(d) the issuance or transfer by the Corporation or
any Subsidiary, in one transaction or in a series of
transactions in any twelve-month period, of any Equity
Securities of the Corporation or any Subsidiary that have
an aggregate Market Value of $1 million or more to any
Interested Stockholder or any Affiliate or Associate
thereof, except pursuant to the exercise of warrants or
rights to purchase securities offered pro rata to all
holders of the Corporation's Voting Stock or by any other
method affording substantially proportionate treatment to
the holders of Voting Stock;
(e) any reclassification or recapitalization of
securities of the Corporation, including any reverse stock
split, any merger, consolidation or share exchange of the
Corporation with any Subsidiary, or any other transaction
(whether or not involving an Interested Stockholder) that
has the effect, directly or indirectly, in one transaction
or a series of transactions, of increasing by 5% or more
the voting power (regardless of when exercisable) or the
proportionate amount of the outstanding shares of any
class or series of Equity Securities of the Corporation or
any Subsidiary directly or indirectly Beneficially Owned
by any Interested Stockholder or any Affiliate or
Associate thereof;
(f) any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax
advantages provided by the Corporation or any Subsidiary
to an Interested Stockholder or any Affiliate or Associate
thereof, except proportionately as a stockholder; or
(g) any agreement, contract or other arrangement
providing directly or indirectly for any of the foregoing;
shall require (i) the approval by a majority of both the
directors then in office and a majority of the Continuing
Directors, voting as a separate group, and (ii) the affirmative
vote of both (A) holders of not less than 80% of the Voting
Stock, voting together as a single class, (B) not less than 75%
of the Voting Stock (other than Voting Stock Beneficially Owned
by the Interested Stockholder who is, or whose Affiliate or
Associate is, a party to the proposed Business Combination)
voting as a separate class. In addition, a proxy or
information statement describing the proposed Business
Combination and complying with the requirements of the Exchange
Act and the rules and regulations promulgated thereunder shall
be mailed to all stockholders of the Corporation at least 30
days prior to the consummation of such Business Combination
(regardless of whether such proxy or information statement is
required pursuant to such act).
2. Exceptions to Supermajority Vote Requirements. If
all conditions specified in either of paragraphs (a) or (b)
below are met, the provisions of Article VII, section 1, shall
not be applicable to any Business Combination, and such
Business Combination shall require only the affirmative vote of
holders of not less than a majority of the Voting Stock, voting
together as a single class, and such other votes as may be
required by law, any other provisions of this Certificate of
Incorporation or the Corporation's Bylaws, and shall further
require only the delivery of such proxy or information
statements, if any, as may be required by law:
(a) The Business Combination shall have been approved
prior to the time such Interested Stockholder became an
Interested Stockholder by a majority of the directors then
in office and a majority of the Continuing Directors,
voting as a separate group; or
(b) All of the following five conditions have been
met:
(1) The aggregate amount of the cash and the
Market Value as of the Valuation Date of
consideration other than cash to be received per
share by holders of Common Stock in such Business
Combination is at least equal to the highest of the
following:
(A) the highest per share price, including
any brokerage commissions, transfer taxes and
soliciting dealer's fees, paid by the Interested
Stockholder for any shares of Common Stock
acquired by it within the two-year period
immediately prior to the Announcement Date or in
the transaction in which it became an Interested
Stockholder, whichever is higher;
(B) the Market Value per share of Common
Stock on the Announcement Date or on the
Determination Date, whichever is higher; or
(C) the price per share equal to the Market
Value per share of Common Stock determined
pursuant to clause (B) immediately preceding,
multiplied by a fraction, the numerator of which
is the highest per share price, including any
brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the Interested
Stockholder for any shares of Common Stock
acquired by it within the two-year period
immediately prior to the Announcement Date, and
the denominator of which is the Market Value per
share of Common Stock on the first date in such
two-year period on which the Interested
Stockholder acquired any shares of Common Stock.
(2) The aggregate amount of the cash and the
Market Value as of the Valuation Date of
consideration other than cash to be received per
share by holders of shares of any class or series of
outstanding stock other than Common Stock is at least
equal to the highest of the following, whether or not
the Interested Stockholder has previously acquired
any shares of any such class or series of stock:
(A) the highest per share price, including
any brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the Interested
Stockholder for any shares of such class or
series of stock acquired by it within the two-
year period immediately prior to the
Announcement Date or in the transaction in which
it became an Interested Stockholder, whichever
is higher;
(B) the highest preferential amount per
share to which the holders of shares of such
class or series of stock are entitled in the
event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation;
(C) the Market Value per share of such
class or series of stock on the Announcement
Date or on the Determination Date, whichever is
higher; or
(D) the price per share equal to the Market
Value per share of such class or series of
stock, determined pursuant to clause (C)
immediately preceding, multiplied by a fraction,
the numerator of which is the highest per share
price, including any brokerage commissions,
transfer taxes and soliciting dealers' fees,
paid by the Interested Stockholder for any
shares of any such class or series of Voting
Stock acquired by it within the two-year period
immediately prior to the Announcement Date, and
the denominator of which is the Market Value per
share of the same class or series of voting
stock on the first day in such two-year period
on which the Interested Stockholder acquired any
shares or the same class or series of Voting
Stock.
(3) The holders of any class or series of the
Corporation's outstanding stock shall receive the
consideration in cash or in the same form as the
Interested Stockholder has previously paid for shares
of the same class or series of stock. If the
Interested Stockholder has paid for shares of any
class of stock with varying forms of consideration,
the form of consideration for such class of stock
shall be either in cash or the form used to acquire
the largest number of shares of such class or series
of stock previously acquired by it. In making any
price calculation under paragraph (b) of Article VII,
section 2, appropriate adjustments shall be made to
reflect any reclassification or stock split
(including any reverse stock split), stock dividend,
recapitalization, reorganization or any similar
transaction which has the effect or increasing or
reducing the number of outstanding shares of stock.
(4) After the Interested Stockholder has become
an Interested Stockholder and prior to the
consummation of such Business Combination:
(A) there shall have been no failure to
declare and pay at the regular date therefor any
full periodic dividends, whether or not
cumulative, on any outstanding Preferred Stock
of the Corporation or other capital stock
entitled to a preference over the Common Stock
as to dividends or upon liquidation;
(B) there shall have been no reduction in
the annual rate of dividends paid on the Common
Stock, except as necessary to reflect any
subdivision of the Common Stock, and no failure
to increase the annual rate of dividends as
necessary to reflect any reclassification
(including any reverse stock split),
recapitalization, reorganization or other
similar transaction which has the effect of
reducing the number of outstanding shares of
Common Stock; and
(C) the Interested Stockholder did not
become the Beneficial Owner of any additional
shares of stock of the Corporation except as
part of the transaction which resulted in such
Interested Stockholder becoming an Interested
Stockholder or by virtue of proportionate stock
splits or stock dividends.
The provisions of clauses (A) and (B) immediately
preceding shall not apply if no Interested
Stockholder or any Affiliate or Associate thereof
voted as a director of the Corporation in favor of
foregoing or reducing dividends in the manner
specified in such clauses and the Interested
Stockholder, within ten days after any such act or
failure to act that resulted in such loss or
diminution of dividends, notifies the Board of
Directors of the Corporation in writing that the
Interested Stockholder disapproves thereof and
requests in good faith that the Board of Directors
rectify such act or failure to act.
(5) After the Interested Stockholder has become
an Interested Stockholder, the Interested Stockholder
shall not have received the benefit, directly or
indirectly, except proportionately as a stockholder,
of any loans, advances, guarantees, pledges or other
financial assistance provided by the Corporation or
any Subsidiary, whether in anticipation of or in
connection with such Business Combination or
otherwise.
3. Determinations. For the purpose of this Article VII,
so long as Continuing Directors constitute at least a majority
of the entire Board of Directors, the Board of Directors shall
have the power to make a good faith determination, on the basis
of information known to them, of: (a) the number of shares of
Capital Stock of which any person or entity is the Beneficial
Owner, (b) whether any person or entity is an Interested
Stockholder or an Affiliate or Associate thereof, (c) whether
any person or entity has an agreement, arrangement or
understanding with another as to the matters referred to in the
definition of Beneficial Owner herein, (d) whether any
transaction constitutes a Business Combination (including the
power to determine in good faith the book value or market value
of the assets of the Corporation or any Subsidiary) or is a
transaction with or for the benefit of an Interested
Stockholder, (e) whether any of the events referred to in
paragraph (b)(4) of Article VII, section 2, have occurred, and
(f) such other matters with respect to which a determination is
required under this Article VII. All such good faith
determinations by the Board of Directors shall be conclusive
and binding on the Corporation and its stockholders for all
purposes of this Article VII.
ARTICLE VIII
Foreign Ownership of Common Stock
1. Purpose. The purpose of this Article VIII is to
limit ownership and control of the Corporation by Non-Citizens
in order to ensure that the Corporation remains in continuous
compliance with the citizenship requirements of the Maritime
Laws.
2. Restrictions on Transfer. Any transfer, or attempted
or purported transfer, of any shares of Common Stock or any
interest therein or right thereof, which the Board of Directors
in good faith determines would result in one or more Non-
Citizens Beneficially Owning or controlling an aggregate
percentage of the outstanding Common Stock in excess of the
Permitted Percentage shall be ineffective as against the
Corporation, and neither the Corporation nor its transfer agent
shall register such transfer or purported transfer on the stock
transfer records of the Corporation and neither the Corporation
nor its transfer agent shall be required to recognize the
transferee or purported transferee thereof as a stockholder of
the Corporation for any purpose whatsoever except to the extent
necessary to effect any remedy available to the Corporation
under this Article VIII.
3. Determination. If at any time, the Board of
Directors in good faith determines that there exists a risk
that a Coastwise Trading Restriction may be imposed upon the
Corporation, the Corporation shall have the power to take those
actions prescribed in Article VIII, sections 4 and 5. Such a
good faith determination by the Board of Directors shall be
conclusive and binding on the Corporation and its stockholders
for all purposes of this Article VIII.
4. No Voting Rights; Temporary Withholding of Dividends
and Other Distributions. Upon any good faith determination by
the Board of Directors pursuant to Article VIII, section 3,
shares of Common Stock determined by the Board of Directors to
be Beneficially Owned by any Person or Persons whose Beneficial
Ownership the Board of Directors determines in good faith to
have created a risk that a Coastwise Trading Restriction may be
imposed upon the Corporation, shall (as long as the Board of
Directors in good faith determines that such risk exists) not
be accorded any voting rights and shall not be deemed to be
outstanding for purposes of determining the vote required on
any matter properly brought before the stockholders of the
Corporation for a vote thereon. The Corporation shall (as long
as the Board of Directors in good faith determines that such
risk exists) withhold the payment of dividends and the sharing
in any other distribution (upon liquidation or otherwise) in
respect of such shares. At such time as the Board of Directors
determines that such risk no longer exists, full voting rights
shall be restored to any shares previously denied such voting
rights by operation of this Article VIII, section 4, and any
dividend or distribution with respect to such shares that has
been withheld pursuant to this Article VIII, Section 4, shall
be due and paid, without interest, solely to the record holders
of such shares at the time the Board of Directors determines
that such risk no longer exists.
5. Redemption of Shares. The Corporation shall have the
power, but not the obligation, to redeem any shares that the
Board of Directors in good faith determines to be Beneficially
Owned by any Person or Persons whose nationality or other
status the Board determines to have created a risk that a
Coastwise Trading Restriction may be imposed on the
Corporation, subject to the following terms and conditions:
(a) the Corporation shall set the Redemption Date;
(b) a notice of redemption shall be given by first
class mail, postage prepaid, mailed not less than 10 days
prior to the Redemption Date to each holder of record of
the shares to be redeemed, at such record holder's address
as the same appears on the stock register of the
Corporation. Each such notice shall state (i) the
Redemption Date, (ii) the number of shares of Common Stock
to be redeemed from such record holder, (iii) the
Redemption Price, and the manner of payment thereof, (iv)
the place where the certificates for such shares are to be
surrendered for payment of the Redemption Price, (v) that
dividends on the shares to be redeemed will cease to
accrue on the Redemption Date and (vi) that after the
Redemption Date, such record holder will only be entitled
to receive the Redemption Price, without interest;
(c) the Redemption Price may be paid in cash or by
delivery of a promissory note of the Corporation, at the
election of the Corporation. Any such promissory note
shall have a maturity of not more than ten years from the
date of issuance and shall bear interest at a fixed rate
equal to the yield on the U.S. Treasury Note having a
maturity comparable to the term of such promissory note as
published in the Wall Street Journal or comparable
publication at the time of the issuance of the promissory
note;
(d) Prior to the Redemption Date, upon surrender of
the certificates for shares in accordance with the
requirements of the notice of redemption (properly
endorsed or assigned for transfer if the Board of
Directors shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the
Redemption Price. In case fewer than all the shares
represented by any such certificate are redeemed, a new
certificate shall be issued representing the shares not
redeemed without cost to the holder thereof;
(e) from and after the Redemption Date, dividends on
the shares of Common Stock called for redemption shall
cease to accrue and such shares shall no longer be deemed
to be outstanding and the holders of such shares will
cease to have any rights as stockholders of the
Corporation, except the right to receive from the
Corporation the Redemption Price, without interest, upon
surrender of the shares, shall cease.
(f) such other terms and conditions as the Board of
Directors may reasonably determine;
provided, however, that nothing in this Article VIII shall
prevent the recipient of a notice of redemption from
transferring his or her Common Stock before the Redemption Date
if such transfer is otherwise permitted under this Certificate
of Incorporation. Upon receipt of notice of such a transfer,
the Corporation shall withdraw the notice of redemption,
provided the transferee of such Common Stock certifies to the
Corporation that he or she, and if he or she is a nominee
holding for the account of another Person, that to the best of
his or her knowledge such other Person is a United States
Citizen. If the transferee fails to make such certification,
such redemption shall be effected on the original Redemption
Date.
6. Severability. Each provision of this Article VIII is
intended to be severable from every other provision. If any
one or more of the provisions contained in this Article VIII is
held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of any other provision of this
Article VIII shall not be affected, and this Article VIII shall
be construed as if the provisions held to be invalid, illegal
or unenforceable had never been contained therein.
ARTICLE IX
Limitation of Liability and Indemnification
1. Limitation of Liability. No director shall be
personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty as a
director, except (a) for breach of the director's duty of
loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or that involve intentional
misconduct of a knowing violation of law, (c) pursuant to
Section 174 of the DGCL, or (d) for any transaction from which
such director derived an improper personal benefit.
2. Authorization of Further Actions. The Board of
Directors may (a) cause the Corporation to enter into contracts
with directors providing for the limitation of liability set
forth in this Article IX to the fullest extent permitted by
law, (b) adopt Bylaws or resolutions, or cause the Corporation
to enter into contracts, providing for indemnification of
directors and officers of the Corporation and other persons
(including without limitation directors and officers of the
Corporation's direct and indirect subsidiaries) to the fullest
extent permitted by law, and (c) cause the Corporation to
exercise the powers set forth in Section 145(g) of the DGCL,
notwithstanding that some or all of the members of the Board of
Directors acting with respect to the foregoing may be parties
to such contracts or beneficiaries thereof.
3. Subsidiaries. The Board of Directors may cause the
Corporation to approve for its direct and indirect subsidiaries
limitation of liability and indemnification provisions
comparable to the foregoing.
4. Amendments. Any amendment or repeal of this Article
IX shall not adversely affect any elimination or limitation of
liability of a director of the Corporation under this Article
IX with respect to any action or inaction occurring prior to
the time of such amendment or repeal. No amendment or repeal
of any Bylaw or resolution relating to indemnification shall
adversely affect any person's entitlement to indemnification
whose claim thereto results from conduct occurring prior to the
date of such amendment or repeal.
ARTICLE X
Amendments; Definitions
1. Amendments to Certificate of Incorporation. Articles
VI, VII, VIII, IX and XI of this Certificate of Incorporation
shall not be amended in any manner (whether by modification or
repeal of an existing Article or Articles or by addition of a
new Article or Articles), except upon resolutions adopted by
the affirmative vote of holders of not less than 80% of the
Voting Stock, voting together as a single class; provided,
however, that if such resolutions shall first be adopted by
both a majority of the directors then in office and a majority
of the Continuing Directors, voting as a separate group, then
such resolutions shall be deemed adopted by the stockholders
upon the affirmative vote of holders of not less than a
majority of the Voting Stock, voting as a single class.
2. Amendments to Bylaws. The Corporation's Bylaws may
be altered, amended, or repealed or new Bylaws may be adopted
by:
(a) the stockholders, but only upon the affirmative
vote of holders of not less than 80% of the Voting Stock,
voting together as a single class; or
(b) the Board of Directors, but only upon the
affirmative vote of both (i) a majority of the directors
then in office and (ii) a majority of the Continuing
Directors, voting as a separate group.
3. Definitions. For purposes of this Certificate of
Incorporation:
(a) "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations promulgated under the
Exchange Act (the term "registrant" in such Rule 12b-2
meaning in this case the Corporation); provided, however,
that in no event shall the Corporation, any of its
Subsidiaries, any Employee Benefit Plan or any of the
other persons or entities exempted from the definition of
Interested Stockholder in Article X, section 3, be deemed
to be an Affiliate or Associate of any Interested
Stockholder.
(b) "Announcement Date" means the first general
public announcement of the proposal or intention to make a
proposal to consummate a Business Combination or its first
communication generally to stockholders of the
Corporation, whichever is earlier.
(c) "Average Closing Sales Price" means the average
of the closing sales prices as quoted on the Nasdaq
National Market during the ten trading days prior to the
date a notice of redemption is given pursuant to Article
VIII, section 5; except that, if the Common Stock is not
traded on the Nasdaq National Market, then the closing
sales prices on any national securities exchange on which
the Common Stock is listed, or if neither quoted on the
Nasdaq National Market nor listed on a national securities
exchange, the mean between the representative bid and ask
prices as quoted by Nasdaq or another generally recognized
reporting system, on each of such ten trading days.
(d) A person shall be deemed to be the "Beneficial
Owner" of and be deemed to "Beneficially Own" any shares
of capital stock (regardless whether owned of record):
(1) Which that person or any of its Affiliates
or Associates, directly or indirectly, owns
beneficially; or
(2) Which such person or any of its Affiliates
or Associates has (A) the right to acquire (whether
exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or
(3) Which are beneficially owned, directly or
indirectly, by any other person with which such
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of
any shares of voting capital stock of the Corporation
or any Subsidiaries.
(e) "Business Combination" means any transaction
referred to in any one or more of the clauses (a) through
(g) of Article VII, section 1.
(f) "Capital Stock" means any Common Stock, Preferred
Stock or other shares of capital stock of the Corporation.
(g) "Citizen" means:
(1) any individual who is a citizen of the
United States, by birth, naturalization or as
otherwise authorized by law;
(2) any corporation (A) that is organized under
the laws of the United States or of a state,
territory, district or possession thereof, (B) of
which no less than 75% of its stock is Beneficially
Owned by persons who are Citizens, (C) whose
president or chief executive officer, chairman of the
board of directors and all officers authorized to act
in the absence or disability of such persons are
Citizens and (D) of which more than 50% of that
number of its directors necessary to constitute a
quorum are Citizens;
(3) any partnership (A) that is organized under
the laws of the United States or of a state,
territory, district or possession thereof, (B) all
general partners of which are Citizens and (C) of
which not less than a 75% interest is Beneficially
Owned by Persons who are Citizens;
(4) any association or limited liability company
(A) that is organized under the laws of the United
States or of a state, territory, district or
possession thereof, (B) whose president or other
chief executive officer (or equivalent position),
chairman of the board of directors (or equivalent
committee or body) and all persons authorized to act
in the absence or disability of such persons are
Citizens, (C) of which not less than 75% of the
voting power is Beneficially Owned by Citizens and
(D) of which more than 50% of that number of its
directors (or equivalent persons) necessary to
constitute a quorum are Citizens;
(5) any joint venture (if not an association,
corporation or partnership) (A) that is organized
under the laws of the United States or of a state,
territory, district or possession thereof and (B) all
co-venturers of which are Citizens; and
(6) any trust (A) that is domiciled in and
existing under the laws of the United States or of a
state, territory, district or possession thereof, (B)
the trustee of which is a Citizen and (C) of which
not less than a 75% interest is held for the benefit
of Citizens.
(h) "Coastwise Trading Restriction" means any
material restriction or detriment to the use of any
property or assets of the Corporation that is imposed
pursuant to the Maritime Laws as a result of (a) Non-
Citizens Beneficially Owning more than the Permitted
Percentage of Common Stock or (b) the nationality or other
status of any Beneficial Owner or Owners of the Common
Stock.
(i) "Continuing Director" means (i) any member of the
Board of Directors who is not an Interested Stockholder or
an Affiliate or Associate thereof, and who was a director
of the Corporation prior to the time the Interested
Stockholder became an Interested Stockholder, and (ii) any
other member of the Board of Directors who is not an
Interested Stockholder or an Affiliate or Associate
thereof, and was recommended or elected by a majority of
the Continuing Directors at a meeting at which a quorum
consisting of a majority of the Continuing Directors was
present, provided that, in the absence of an Interested
Stockholder, any reference to "Continuing Directors" shall
mean all the directors then in office.
(j) "Determination Date" means the date on which an
Interested Stockholder first became an Interested
Stockholder.
(k) "Employee Benefit Plan" means any option, bonus,
profit sharing, employee stock ownership, dividend
reinvestment, savings or similar plan of the Corporation
or any Subsidiary, or any trust related thereto.
(l) "Equity Security" means (1) any stock or similar
security, certificate of interest, or participation in any
profit-sharing agreement, voting trust certificate, or
certificate of deposit for the foregoing, (2) any security
convertible, with or without consideration, into an equity
security, or any warrant or other security carrying any
right to subscribe to or purchase an equity security, or
(3) any put, call, straddle, or other option, right or
privilege to acquire an equity security from or to sell an
equity security to another without being bound to do so.
(m) "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
(n) "Interested Stockholder" means any person (other
than the Corporation, any Subsidiary, any Employee Benefit
Plan, any fiduciary with respect to an Employee Benefit
Plan acting in such capacity, any person owning Capital
Stock as of the date of filing this Amended and Restated
Certificate of Incorporation, or any Affiliate or
Associate of any of the foregoing) who (1) is the
Beneficial Owner, directly or indirectly, of shares of
Capital Stock (including two or more classes or series
voting together as a single class) representing 10% or
more of the Voting Stock or (2) is an Affiliate or
Associate of the Corporation and at any time within the
two-year period immediately prior to the date in question
was the Beneficial Owner, directly or indirectly, of
shares of Capital Stock (including two or more classes or
series voting together as a single class) representing 10%
or more of the Voting Stock. For the purpose of
determining whether a person is an Interested Stockholder,
the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned by the
person through application of paragraph (c) of Article X,
section 3 but shall not include any other shares of Voting
Stock that may be issuable pursuant to any agreement,
arrangement, or understanding or upon exercise of
conversion rights, warrants or options, or otherwise.
(o) "Maritime Laws" means the Merchant Marine Act of
1936, as amended, the Shipping Act of 1916, as amended and
the regulations promulgated thereunder and any successors
to any of the foregoing.
(p) "Market Value" means:
(1) in the case of stock, the highest closing
sale price during the 30 calendar day period
immediately preceding the date in question of a share
of such stock on the Nasdaq National Market, or, if
such stock is not quoted on the Nasdaq National
Market, then on any national securities exchange on
which the Common Stock is listed, or if neither
quoted on the Nasdaq National Market nor listed on a
national securities exchange, the highest closing
sales price during the 30 calendar day period
immediately preceding the date in question, the
closing bid quotation with respect to a share of such
stock during the 30 calendar day period preceding the
date in question as quoted by Nasdaq or another
generally recognized reporting system, or if no such
quotation is available, the fair market value on the
date in question of a share of such stock as
determined by a majority of the Continuing Directors
at a meeting of the Board of Directors at which a
quorum consisting of at least a majority of the then
Continuing Directors is present; and
(2) in the case of property other than cash or
stock, the fair market value or such property on the
date in question as determined by a majority of the
Continuing Directors at a meeting of the Board of
Directors at which a quorum consisting of at least a
majority of the then Continuing Directors is present.
(q) "Non-Citizen" means any person other than a
Citizen.
(r) "Permitted Percentage" means, as of the date of
determination, 24% of the number of shares of issued and
outstanding Common Stock on that date; provided that, if
the Maritime Laws are amended to change the amount of
Common Stock that a Non-Citizen may own or have the power
to vote, then the Permitted Percentage shall be changed to
a percentage point less than the percentage that would
cause the Corporation to be no longer qualified under the
Maritime Laws, after giving effect to such amendment, as a
Citizen qualified to (i) engage in coastwise trade, (ii)
participate in the United State Maritime Administration,
Department of Transportation's ("MARAD") Title XI or
comparable financing programs, or (iii) participate in
operating differential subsidies or similar programs.
(s) A "person" means any individual, firm,
corporation or other entity, or a group of persons acting
or agreeing to act together in the manner set forth in
Rule 13d-5 under the Exchange Act.
(t) "Redemption Date" means the date set by the
Corporation on which those shares of Common Stock that the
Corporation elects to redeem pursuant to Article VIII,
section 5, will be redeemed.
(u) "Redemption Price" means the sum of (i) the
Average Closing Sales Price for the Common Stock and (ii)
any dividend or distribution declared with respect to the
shares of Common Stock prior to the date such shares are
called for redemption but which has been withheld by the
Corporation pursuant to Article VIII, section 4.
(v) "Subsidiary" means any corporation, partnership
or other entity of which the Corporation, directly or
indirectly, owns voting stock or similar interests having
a majority of the votes entitled to be cast.
(w) "Valuation Date" means:
(1) for a Business Combination voted upon by
stockholders, the later of the day prior to the date
of the stockholders' vote or the date 20 business
days prior to the consummation of the Business
Combination; and
(2) for a Business Combination not voted upon by
stockholders, the date of the consummation of the
Business Combination.
(x) "Voting Stock" means the outstanding shares of
Capital Stock entitled to vote generally in an election of
directors, excluding those shares denied voting rights
pursuant to Article VIII, Section 4.
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
of
TRICO MARINE SERVICES, INC.
SECTION 1
Offices
1.1 Registered Office. The registered office of Trico
Marine Services, Inc. (the "Corporation") shall be in the City
of Wilmington, County of New Castle, State of Delaware.
1.2 Other Offices. The Corporation may also have
offices at such other places both within and without the State
of Delaware as the Corporation's Board of Directors may from
time to time determine or the business of the Corporation may
require.
SECTION 2
Meetings of Stockholders
2.1 Annual Meetings. Annual meetings of stockholders
shall be held for the election of directors at such date, time
and place either within or without the State of Delaware as
shall be designated by the Board of Directors and stated in the
notice of the meeting.
2.2 Special Meetings. (a) Special meetings of the
stockholders for any purpose or purposes may be called by the
Chairman of the Board of Directors, the Corporation's President
or upon a vote of the majority of the Board of Directors, at
such date, time and place either within or without the State of
Delaware as shall be stated in the notice of the meeting.
(b) Except as otherwise provided in the Certificate
of Incorporation or required by applicable law, the
Corporation's Secretary shall call a special meeting of the
stockholders, to be held on such date as the Secretary shall
determine, not less than 15 nor more than 60 days after the
actual receipt of a request in writing of any Beneficial Owner
or Owners of at least 25% of the Voting Stock. Such request
shall set forth:
(i) a complete and accurate description of the
matter not to exceed 500 words, of the action proposed to
be taken at such meeting, the reasons for the action and
any material interest of the stockholder in the matter.
(ii) the name, business address and residential
address of each Beneficial Owner composing the group
making the request, the number of shares of Voting Stock
of which each such person is the Beneficial Owner and the
dates on which each person acquired his or her Voting
Stock;
(iii) a representation that at least one such
Beneficial Owner or a representative thereof intends to
appear in person at the meeting to propose the action
specified in the request; and
(iv) if any proposed action consists of or
includes a proposal to amend either the Certificate of
Incorporation or the Bylaws, the language of the proposed
amendment.
The Corporation's Secretary may require any person or persons
submitting a request to call a special meeting of stockholders
to furnish such documentary information as may be reasonably
required by the Corporation to determine that such person or
persons as a group Beneficially Owns at least 25% of the Voting
Stock. The Secretary may refuse to call a special meeting
unless the request is made in compliance with the foregoing
procedure.
2.3 Notice of Stockholder Nominations and Stockholder
Business. (a) At any meeting of stockholders, only such
business shall be conducted as shall have been properly brought
before the meeting. Except as otherwise provided in the
Certificate of Incorporation or required by applicable law,
nominations for the election of directors at a meeting at which
directors are to be elected or other matters to be properly
brought before any meeting of stockholders (other than any
special meeting of stockholders called pursuant to Section
2.2(b)) must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board
of Directors, including matters covered by Rule 14a-8 of the
Securities and Exchange Commission, (ii) otherwise properly
brought before the meeting by or at the direction of the Board
of Directors, or (iii) otherwise properly brought before the
meeting by any person who (A) has been for at least one year
the Beneficial Owner of at least 1% of any class or series of
outstanding Voting Stock entitled to be voted on the proposed
business and (B) complies with the procedures set forth below.
(b) A notice of the intent of a stockholder to make
a nomination or to bring any other matter before the meeting
shall be made in writing and received by the Corporation's
Secretary not more than 270 days and not less than 60 days in
advance of the first anniversary of the preceding year's annual
meeting of stockholders or, if a special meeting or an annual
meeting of stockholders scheduled to be held either 30 days
earlier or later than such anniversary date, such notice shall
be received by the Corporation's Secretary within 15 days of
the earlier of the date on which notice of such meeting is
first mailed to stockholders or public disclosure of the
meeting date is made.
(c) Every such notice by a stockholder shall set
forth:
(i) the name, age, business address and
residential address of the stockholder who intends to make
a nomination or bring up any other matter, and any person
acting in concert with such stockholder;
(ii) the number of shares of Voting Stock of
which the stockholder is the Beneficial Owner and the
dates on which such person acquired his or her Voting
Stock;
(iii) a representation that the stockholder
intends to appear in person at the meeting to make the
nomination or bring up the matter specified in the notice;
(iv) with respect to notice of an intent to make
a nomination, a description of all agreements,
arrangements or understandings among the stockholder, any
person acting in concert with the stockholder, each
proposed nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination
or nominations are to be made by the stockholder;
(v) with respect to notice of an intent to make
a nomination, (A) the name, age, business address and
residential address of each person proposed for
nomination, (B) the principal occupation or employment of
such person, (C) the class and number of shares of capital
stock of the Corporation of which such person is the ben-
eficial owner, and (D) any other information relating to
such person that would be required to be disclosed in a
proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had such nominee been
nominated by the Board of Directors; and
(vi) with respect to notice of an intent to
bring up any other matter, a complete and accurate
description of the matter not to exceed 500 words, the
reasons for conducting such business at the meeting, and
any material interest of the stockholder in the matter.
(d) The Corporation's Secretary may require any
stockholder submitting a notice of an intent to make a
nomination or bring up other business to furnish such
documentary information as may be reasonably required by the
Corporation to determine that such stockholder has been for at
least one year the Beneficial Owner of at least 1% of any class
or series of outstanding Voting Stock entitled to be voted on
the proposed business.
(e) Notice of an intent to make a nomination shall
be accompanied by the written consent of each nominee to serve
as a director of the Corporation if so elected and an affidavit
of each such nominee certifying that he or she meets the
qualifications necessary to serve as a director of the
Corporation. The Corporation may require any proposed nominee
to furnish such other information as may be reasonably required
by the Corporation to determine the eligibility and
qualifications of such person to serve as a director.
(f) With respect to any proposal by a stockholder to
bring before a meeting any matter other than the nomination of
directors, the following shall govern:
(i) If the Corporation's Secretary has received
sufficient notice of a proposal that may properly be
brought before the meeting, a proposal sufficient notice
of which is subsequently received by the Secretary and
that is substantially duplicative of the first proposal
shall not be properly brought before the meeting. If in
the judgment of the Board of Directors a proposal deals
with substantially the same subject matter as a prior
proposal submitted to stockholders at a meeting held
within the preceding five years, it shall not be properly
brought before any meeting held within three years after
the latest such previous submission if (A) the proposal
was submitted at only one meeting during such preceding
period and it received affirmative votes representing less
than 3% of the total number of votes cast in regard
thereto, (B) the proposal was submitted at only two
meetings during such preceding period and it received at
the time of its second submission affirmative votes
representing less than 6% of the total number of votes
cast in regard thereto, or (C) the proposal was submitted
at three or more meetings during such preceding period and
it received at the time of its latest submission
affirmative votes representing less than 10% of the total
number of votes cast in regard thereto.
(ii) Notwithstanding compliance with all of the
procedures set forth above in this Section, no proposal
shall be deemed to be properly brought before a meeting of
stockholders if, in the judgment of the Board of
Directors, it is not a proper subject for action by
stockholders under Delaware Law.
(g) At the meeting of stockholders, the chairman
shall declare out of order and disregard any nomination or
other matter that is not presented in accordance with the
foregoing procedures or that is otherwise contrary to the
foregoing terms and conditions.
(h) Nothing in this Section shall be deemed to
affect any rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement or to solicit
their own proxies pursuant to the proxy rules of the Securities
and Exchange Commission.
2.4 Notice of Meeting. Whenever stockholders are
required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which shall state
the place, date and time of the meeting, and the purpose or
purposes for which the meeting is called. Unless otherwise
provided by law, the written notice of any meeting shall be
given to each stockholder entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the
meeting. If mailed, such notice shall be deemed to be given
when deposited in the United States mail, postage prepaid,
directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation.
2.5 Stockholder List. The Secretary shall prepare and
make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
2.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, with respect to
each matter considered and voted upon at any stockholders'
meeting, the holders of a majority of the outstanding shares of
each class of Capital Stock, excluding shares deemed to be
Excess Shares (as defined in the Certificate of Incorporation)
by the Board of Directors, or series thereof, entitled to vote
thereon, present in person or represented by proxy, shall
constitute a quorum, provided that two or more classes or
series shall be considered a single class if the holders
thereof are entitled to vote together as a single class with
respect to such matter. If, however, a quorum shall not be
present or represented at any meeting of the stockholders (or
with respect to any matter to be considered and voted upon
thereat), the holders of any class of Capital Stock or series
thereof entitled to vote thereat (or with respect to any such
matter), present in person or represented by proxy, shall have
the power to adjourn the meeting (or the vote upon such matter,
without prejudice to the right of the stockholders to vote upon
any matter as to which a quorum does exist) from time to time,
without notice other than announcement at the meeting, until a
quorum shall be presented or represented. At such adjourned
meeting at which a quorum shall be present or represented any
business may be transacted that might have been transacted at
the meeting as originally notified. If the adjournment is for
more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting (or with respect to such
matter).
2.7 Vote Required. When a quorum is present with
respect to any matter considered at any meeting of
stockholders, the vote of the holders of a majority of the
Voting Stock shall decide such matter, unless the matter is one
upon which by express provision of law, the Certificate of
Incorporation or these Bylaws, a different vote is required, in
which case such express provision shall govern and control the
decision of such matter.
2.8 Voting Rights of Stockholders. Unless otherwise
provided in the Certificate of Incorporation, each stockholder
shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of Voting Stock held
of record by such holder. If the Certificate of Incorporation
provides for more or less than one vote for any share of Voting
Stock on any matter, every reference in these Bylaws to a
majority or other proportion of Voting Stock shall refer to
such majority or other proportion of the votes of such stock.
2.9 Proxies. (a) Each stockholder entitled to vote
at a meeting of stockholders may authorize another person or
persons to act for such stockholder by proxy, but no such proxy
shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period.
(b) Execution of a proxy may be accomplished by a
stockholder or his or her authorized officer, director,
employee or agent signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means
including, without limitation, by facsimile signature. A
stockholder may authorize another person or persons to act for
him as proxy by transmitting or authorizing the transmission of
a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy
or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such transmission,
provided that any such telegram, cablegram or other means of
electronic transmission must either set forth or be submitted
with information from which it can be determined that the
telegram, cablegram or other electronic transmission was
authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other electronic transmissions are
valid, the inspectors shall specify the information upon which
they relied.
(c) Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission may be
substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or
transmission.
(d) A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy that is
not irrevocable by attending the meeting and voting in person
or by filing an instrument in writing revoking the proxy or
another duly executed proxy bearing a later date with the
Secretary.
2.10 Unanimous Written Consent. Unless otherwise
provided in the Certificate of Incorporation, any action
required to be taken at any annual or special meeting of
stockholders, or any action that may be taken at any annual or
special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, by the
unanimous written consent of all holders of Capital Stock that
would be entitled to vote thereon if an annual or special
meeting had been called for the taking of such action.
2.11 Treasury Stock. Shares of Voting Stock held in
the treasury of the Corporation shall not be deemed to be
outstanding shares for the purpose of voting or determining the
presence of a quorum or the total number of shares entitled to
vote on any matter.
2.12 Presiding Officer. All meetings of stockholders
shall be presided over by the Chairman of the Board of
Directors, or in his absence, by a chairman designated by the
Board of Directors. The Secretary shall act as secretary of
the meeting, or in the absence of the Secretary by an Assistant
Secretary, or in their absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
2.13 Inspectors. Prior to a meeting of stockholders,
the Board shall appoint one or more inspectors to act at the
meeting and make a written report thereof. Each inspector
shall take and sign an oath faithfully to execute the duties of
with strict impartiality and according to the best of his or
her ability. The inspectors shall (i) ascertain the number of
shares outstanding and the voting power of each, (ii) determine
the shares represented at a meeting and the validity of the
proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors, (v) certify their determination of the number of
shares represented at the meeting, and their count of all votes
and ballots, and (vi) perform such other functions as the
presiding officer of the meeting shall determine. The
inspectors may appoint or retain other persons or entities to
assist them in the performance of their duties.
2.14 Adjournments. Any annual or special meeting of
stockholders may be adjourned by the presiding officer from
time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the
time and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 3
Directors
3.1 Powers. The business and affairs of the
Corporation shall be managed under the direction of a Board of
Directors (the "Board"), except as otherwise provided by law or
by the Certificate of Incorporation.
3.2 Number. Subject to the restriction that the
number of directors shall not be less than the number required
by Delaware Law, and subject further to the creation or lapse
of directorships upon the occurrence of events specified in the
Certificate of Incorporation, the number of directors shall be
fixed, from time to time, by a resolution adopted by a majority
of the Continuing Directors. Until otherwise fixed by the
directors, the number of directors constituting the entire
Board shall be six. The Secretary shall have the power to
certify at any time as to the number of directors authorized
and as to the class to which each director has been elected or
assigned.
3.3 Classification of Board. The members of the
Board, other than those who may be elected by holders of any
one or more series of Preferred Stock voting separately, shall
be classified, with respect to the time during which they hold
office, into three classes, designated Class I, II and III, as
nearly equal in number in possible. The initial directors in
Class I shall be elected for a term expiring at the annual
meeting of stockholders to be held in 1997, the initial
directors in Class II shall be elected for a term expiring at
the annual meeting of stockholders to be held in 1998 and the
initial directors in Class III shall be elected for a term
expiring at the annual meeting of stockholders to be held in
1999.
3.4 Resignation. Any director may resign at any time
upon written notice to the Board, the President or the
Secretary. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it
effective.
3.5 Nominations. Only persons who are nominated in
accordance with the procedures set forth in this Section 2.3
shall be eligible for election as directors. Notwithstanding
any provision of these Bylaws to the contrary, the provisions
of Section 2.3 shall not apply to the election of any directors
which the holders of any class or series of Preferred Stock,
voting separately as a class, may be entitled to elect.
3.6 Election of Directors. Unless otherwise provided
in the Certificate of Incorporation, at each meeting of the
stockholders for the election of directors at which a quorum is
present, directors shall be elected by a plurality of the votes
of the shares of Voting Stock present in person or represented
by proxy at the meeting.
3.7 Compensation. Unless otherwise restricted by the
Certificate of Incorporation or of these Bylaws, the Board
shall have the authority to fix the compensation of directors.
The directors may be paid their expenses, if any, of attendance
at each meeting of the Board. The directors may be paid a
stated salary as director or a fixed sum for attendance at each
meeting of the Board or committee. No such payment shall
preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 4
Meetings of the Board
4.1 Meetings. The Board may hold meetings, both
regular and special, either within or without the State of
Delaware.
4.2 Regular Meetings. Regular meetings of the Board
may be held without notice at such time and at such place as
shall from time to time be determined by the Board.
4.3 Special Meetings. Special meetings of the Board
may be called by the Chairman of the Board, the President or
the Secretary on two day's notice to each director, either
personally or by mail, telephone or telegram. Special meetings
shall be called by the Chairman of the Board, the President or
Secretary in like manner and on like notice on the written
request of 25% of the directors.
4.4 Quorum. At all meetings of the Board a majority
of the directors shall constitute a quorum for the transaction
of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of
the Board, except as may be otherwise specifically provided by
law or by the Certificate of Incorporation. If a quorum shall
not be present at any meeting of the Board, the directors
present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum shall be present.
4.5 Action at Meeting. If a quorum is present when
any meeting of the Board is convened, the directors may
continue to do business, taking action by vote of a majority of
a quorum as fixed in Section 4.4, until adjournment,
notwithstanding the withdrawal of enough directors to leave
less than a quorum or the refusal of any director present to
vote.
4.6 Action by Consent. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board
or of any committee thereof may be taken without a meeting, if
all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or
committee.
4.7 Meetings by Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws,
members of the Board or any committee designated by the Board
may participate in a meeting of the Board or any committee, by
means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
4.8 Presiding Officer. The Chairman of the Board
shall preside at all meetings of the Board or, in his absence,
a chairman appointed by the Board. The Secretary or in the
absence of the Secretary, an Assistant Secretary, shall act as
secretary of each meeting, but in the absence of the Secretary
and an Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
SECTION 5
Committees of the Board
5.1 Designation of Committees. The Board may, by
resolution passed by a majority of the Continuing Directors,
designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the
Board. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or
disqualified member.
5.2 Authority of Committees. Any such committee shall
have those powers of the Board in the management of the
business and affairs of the Corporation provided in the
resolution of the Board designating such committee, provided
that no such committee shall have the power or authority to
propose amendments to the Certificate of Incorporation, adopt
an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property or assets,
recommend to the stockholders a dissolution of the Corporation
or a revocation of a dissolution, amend these Bylaws, declare a
dividend, authorize the issuance of Capital Stock, adopt a
certificate of ownership and merger, or adopt, implement or
propose to the stockholders that any transaction that
constitutes a Business Combination, as defined in the
Certificate of Incorporation on the date it became effective.
5.3 Minutes. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required.
SECTION 6
Notices
6.1 Form of Notice. Unless provided otherwise by law,
the Certificate of Incorporation or these Bylaws, any notice
that is required to be given to stockholders shall be given in
writing, by mail, addressed to such stockholder, at his address
as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States
mail. Notice to directors may be given in like manner or may
be given by telephone, telex or facsimile transmission or by
sending the same by national commercial courier service for
next-day delivery.
6.2 Waiver. Whenever any notice is required to be
given under law, the Certificate of Incorporation or these
Bylaws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
SECTION 7
Officers
7.1 General. The officers of the Corporation shall be
chosen by the Board at its first meeting after each annual
meeting of stockholders and shall be a Chairman of the Board,
President, a Secretary and a Treasurer. The Board may also
choose one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers. Any number of offices
may be held by the same person, unless the Certificate of
Incorporation or the Bylaws otherwise provide.
7.2 Other Officers. The Board may appoint such other
officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by
the Board.
7.3 Compensation. The salaries of all officers and
agents of the Corporation shall be fixed by the Board.
7.4 Term. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Subject
to such obligations of the Corporation as may exist under any
contract of employment, any officer elected or appointed by the
Board may be removed at any time by the President or by the
affirmative vote of a majority of the Continuing Directors.
Any vacancy occurring in any office of the Corporation shall be
filled by the Board.
7.5 Chairman of the Board. The Chairman of the Board
shall have the general powers, duties and responsibilities of
supervision and management inherent in such office as well as
such additional powers and duties as the Board may from time to
time prescribe. The Chairman of the Board shall control and
direct the Corporation's business and supervise, direct and
control the management of the business of the Corporation. He
shall preside at all meetings of the stockholders and the
Board.
7.6 President. The President shall, except as the
Board may otherwise direct, supervise the daily operations of
the business of the Corporation and have general charge of the
Corporation's property and supervision over the Corporation's
officers, employees and agents. At the request of the Chairman
of the Board, or in his absence or during his disability, the
President shall perform the duties and exercise the functions
of the Chairman of the Board. Except as the Board may
otherwise authorize, the President shall execute bonds,
mortgages and any other contracts of any nature on behalf of
the Corporation.
7.7 Vice Presidents. In the absence of the President
or in the event of his inability or refusal to act, the Vice
President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Board, or in the absence of any designation, then in the order
of their election) shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. The Vice
Presidents shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
7.8 Secretary. The Secretary shall attend all
meetings of the Board and all meetings of the stockholders and
record all the proceedings of the meetings of the Corporation
and of the Board in a book to be kept for that purpose and
shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board,
and shall perform such other duties as may be prescribed by the
Board or President, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and
he, or an Assistant Secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it
may be attested by his signature or by the signature of such
Assistant Secretary. The Board may give general authority to
any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
7.9 Assistant Secretary. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the
order determined by the Board (or if there be no such
determination, then in the order of their election) shall, in
the absence of the Secretary or in the event of his inability
or refusal to act, perform the duties and exercise the powers
of the Secretary and shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
7.10 Treasurer. The Treasurer shall have the custody
of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board. He shall disburse the funds of the Corporation as may
be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and the Board,
at its regular meetings, or when the Board so requires, an
account of all his transactions as treasurer and of the
financial condition of the Corporation. If required by the
Board, he shall give the Corporation a bond (which shall be
renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board for the faithful
performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
7.11 Assistant Treasurer. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in
the order determined by the Board (or if there be no such
determination, then in the order of their election) shall, in
the absence of the Treasurer or in the event of his inability
or refusal to act, perform the duties and exercise the powers
of the Treasurer and shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
SECTION 8
Stock
8.1 Certificated or Uncertificated. The shares of the
Corporation shall be uncertificated or shall be represented by
certificates signed in the name of the Corporation by the
Chairman of the Board or the President or a Vice President and
by the Secretary or an Assistant Secretary of the Corporation.
Upon the face or back of each stock certificate issued to
represent any partly paid shares, or upon the books and records
of the Corporation in the case of uncertificated partly paid
shares, shall be set forth the total amount of the
consideration to be paid therefor and the amount paid thereon
shall be stated.
8.2 Summary of Rights. The powers, designations,
preferences and relative, participating, optional or other
special rights of each class of stock or series of each class
of stock, and of each series of any class, and the
qualifications, limitations or restrictions of such preferences
and rights shall be set forth in full or summarized on the face
or back of the certificate that the Corporation shall issue to
represent such class or series of stock; provided that, except
as otherwise provided in Section 202 of Delaware Law, or in any
act amending, supplementing or substituted for such section, in
lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and rights.
8.3 Notice to Holders of Uncertificated Stock.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the
registered owner thereof a written notice containing the
information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of Delaware Law
or a statement that the Corporation will furnish without charge
to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and rights.
8.4 Facsimile Signatures. Any of or all the
signatures on a certificate may be facsimile. In case any
officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
8.5 Lost Certificates. The Board may direct a new
certificate or certificates or uncertificated shares to be
issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or
certificates or uncertificated shares, the Board may, in its
discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or
give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
8.6 Transfer of Stock. Upon surrender to the
Corporation or the transfer agent of a certificate for shares
duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of
the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer
instructions from the registered owner of uncertificated shares
such uncertificated shares shall be cancelled and issuance of
new equivalent uncertificated shares or certificated shares
shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the
Corporation.
8.7 Registered Stockholders. Except as otherwise
provided by law, the Corporation, and its directors, officers
and agents, may recognize and treat a person registered on its
records as the owner of shares, as the owner in fact thereof
for all purposes, and as the person exclusively entitled to
have and to exercise all rights and privileges incident to the
ownership of such shares, and rights under this Section 8.7
shall not be affected by any actual or constructive notice that
the Corporation, or any of its directors, officers or agents,
may have to the contrary.
SECTION 9
Indemnification
9.1 Indemnity. (a) Except with respect to an action
or Claim (other than as authorized in Section 9.2) commenced by
an Indemnitee against the Corporation or by an Indemnitee as a
derivative action by or in the right of the Corporation that
has not been authorized by the Board, the Corporation shall
indemnify, defend and hold harmless any Indemnitee against
Expenses reasonably incurred or suffered in connection with any
Claim against Indemnitee, whether the basis of such Claim is
alleged action or inaction in an official capacity as
Indemnitee or in any other capacity while serving as an
Indemnitee (including appearances as a witness or in connection
with giving testimony or evidence), if:
(i) the Indemnitee is successful in his defense of
the Claim on the merits or otherwise, or
(ii) the Indemnitee has been found by the
Determining Body to have met the Standard of Conduct (as
determined in accordance with the procedures set forth in
this Section 9.1), provided that no indemnification shall
be made in respect of any Claim by or in the right of the
Corporation as to which Indemnitee shall have been
adjudicated in a final judgment to be liable to the
Corporation, unless, and only to the extent that the court
in which such Claim was brought shall determine upon
application that, despite such adjudication of liability
but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity
for such Expenses which the court shall deem proper.
(b) For purposes of this Section 9, the "Standard of
Conduct" is met when conduct by an Indemnitee with respect to
which a Claim is asserted was conduct performed in good faith
which he reasonably believed to be in, or not opposed to, the
best interest of the Corporation, and, in the case of a Claim
which is a criminal action or proceeding, conduct that the
Indemnitee had no reasonable cause to believe was unlawful.
The termination of any Claim by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
Indemnitee did not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of
any Claim as to which Indemnitee may be indemnified hereunder,
Indemnitee shall notify the Chief Executive Officer of the
Corporation, but the failure to promptly notify the Chief
Executive Officer shall not relieve the Corporation from any
obligation under this Section 9. Upon receipt of such request,
the Chief Executive Officer shall promptly advise the members
of the Board of the request and that the establishment of a
Determining Body with respect to Indemnitee's request for
indemnification as to the Claim will be presented at the next
regularly scheduled meeting of the Board. If a meeting of the
Board is not regularly scheduled within 120 calendar days of
the date the Chief Executive Officer receives notice of the
Claim, the Chief Executive Officer shall cause a special
meeting of the Board of Directors to be called within such
period in accordance with the provisions of the Bylaws. After
the Determining Body has been established, the Determining Body
shall inform the Indemnitee of the constitution of the
Determining Body and Indemnitee shall provide the Determining
Body with all facts relevant to the Claim known to such
Indemnitee, and deliver to the Determining Body all documents
relevant to the Claim in Indemnitee's possession. Before the
60th day after its receipt from the Indemnitee of such
information (the "Determination Date"), together with such
additional information as the Determining Body may reasonably
request of Indemnitee prior to such date (the receipt of which
shall not begin a new 60-day period) the Determining Body shall
determine whether or not Indemnitee has met the Standard of
Conduct and shall advise Indemnitee of its determination. If
Indemnitee shall have supplied the Determining Body with all
relevant information, including all additional information
reasonably requested by the Determining Body, any failure of
the Determining Body to make a determination by or on the
Determination Date as to whether the Standard of Conduct was
met shall be deemed to be a determination that the Standard of
Conduct was met by Indemnitee.
(d) If at any time during the 60-day period ending
on the Determination Date, Indemnitee becomes aware of any
relevant facts not theretofore provided by him to the
Determining Body, Indemnitee shall inform the Determining Body
of such facts, unless the Determining Body has obtained such
facts from another source. The provision of such facts to the
Determining Body shall not begin a new 60 day period.
(e) The Determining Body shall have no power to
revoke a determination that Indemnitee met the Standard of
Conduct unless Indemnitee (i) submits to the Determining Body
at any time during the 60 days prior to the Determination Date
fraudulent information, (ii) fails to comply with the
provisions of Section 9.1(d), or (iii) intentionally fails to
submit information or documents relevant to the Claim
reasonably requested by the Determining Body prior to the
Determination Date.
(f) In the case of any Claim not involving any
threatened or pending criminal proceeding:
(i) if prior to the Determination Date the
Determining Body has affirmatively made a determination
that Indemnitee met the Standard of Conduct (not including
a determination deemed to have been made by inaction), the
Corporation may, in its sole discretion, after notice to
Indemnitee, assume all responsibility for the defense of
the Claim with counsel satisfactory to Indemnitee (who
shall not, except with the written consent of Indemnitee,
be counsel to the Corporation), and, in any event, the
Corporation and the Indemnitee each shall keep the other
informed as to the progress of the defense of the Claim,
including prompt disclosure of any proposals for
settlement; provided that if the Corporation is a party to
the Claim and Indemnitee reasonably determines that there
is any conflict between the positions of the Corporation
and Indemnitee, with respect to the Claim or otherwise,
then Indemnitee shall be entitled to conduct his defense
with counsel of his choice at the Corporation's expense in
accordance with the terms and conditions of this Section
9; and provided further that Indemnitee shall in any event
be entitled at his expense to employ counsel chosen by him
to participate in the defense of the Claim; and
(ii) The Corporation shall not be obligated to
indemnify Indemnitee for any amount paid in a settlement
that the Corporation has not approved. The Corporation
shall fairly consider any proposals by Indemnitee for
settlement of the Claim. If the Corporation proposes a
settlement of the Claim and such settlement is acceptable
to the person asserting the Claim, or the Corporation
believes a settlement proposed by the person asserting the
Claim should be accepted, it shall inform Indemnitee of
the terms of such proposed settlement and shall fix a
reasonable date by which Indemnitee shall respond. If In-
demnitee agrees to such terms, he shall execute such
documents as shall be necessary to make final the
settlement. If Indemnitee does not agree with such terms,
Indemnitee may proceed with the defense of the Claim in
any manner he chooses, provided that if Indemnitee is not
successful on the merits or otherwise, the Corporation's
obligation to indemnify such Indemnitee as to any Expenses
incurred following his disagreement shall be limited to
the lesser of (A) the total Expenses incurred by
Indemnitee following his decision not to agree to such
proposed settlement or (B) the amount that the Corporation
would have paid pursuant to the terms of the proposed set-
tlement.
(g) In the case of any Claim involving a proposed,
threatened or pending criminal proceeding, Indemnitee shall be
entitled to conduct the defense of the Claim with counsel of
his choice and to make all decisions with respect thereto;
provided, that the Corporation shall not be obliged to
indemnify Indemnitee for any amount paid in settlement of such
a Claim unless the Corporation has approved such settlement.
(h) After notifying the Corporation of the existence
of a Claim in accordance with Section 9.1(c), Indemnitee may
from time to time request the Corporation to pay the Expenses
(other than judgments, fines, penalties or amounts paid in set-
tlement) that he incurs in pursuing a defense of the Claim
prior to the time that the Determining Body determines whether
the Standard of Conduct has been met. The Disbursing Officer
shall pay to Indemnitee the amount requested (regardless of
Indemnitee's apparent ability to repay such amount) upon re-
ceipt of an undertaking by or on behalf of Indemnitee to repay
such amount along with any other amounts advanced or paid after
the Determination Date in accordance with the provisions of
this Section 9.1, if (i) the Determining Body determines prior
to the Determination Date that Indemnitee did not meet the
Standard of Conduct or (ii) Indemnitee is prohibited from being
indemnified by the Corporation by virtue of the provisions of
Delaware Law.
(i) After it has been determined that the Standard
of Conduct has been met, for so long as and to the extent that
the Corporation is required to indemnify Indemnitee under this
Section 9, the provisions of Section 9.1(h) shall continue to
apply with respect to Expenses incurred after such time except
that (i) no undertaking shall be required of Indemnitee and
(ii) the Disbursing Officer shall pay to Indemnitee the amount
of any fines, penalties or judgments against him that have
become final and for which he is entitled to indemnification
hereunder, and any amount of indemnification ordered to be paid
to him by a court.
(j) Any determination by the Corporation with
respect to settlement of a Claim shall be made by the
Determining Body.
(k) All determinations and judgments made by the
Determining Body hereunder shall be made in good faith.
(l) The Corporation and Indemnitee shall keep
confidential to the extent permitted by law and their fiduciary
obligations all facts and determinations provided pursuant to
or arising out of the operation of this Section 9 and the
Corporation and Indemnitee shall instruct its or his agents and
employees to do likewise.
9.2 Enforcement. (a) The rights provided by this
Section 9 shall be enforceable by Indemnitee in any court of
competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of
his rights under this Section 9 Indemnitee shall be entitled to
recover from the Corporation, and shall be indemnified by the
Corporation against, any and all Expenses actually and
reasonably incurred by him in connection with such proceeding
but only if he prevails therein. If it shall be determined
that Indemnitee is entitled to receive part but not all of the
relief sought, then the Indemnitee shall be entitled to be
reimbursed for all Expenses incurred by him in connection with
such judicial adjudication if the amount to which he is de-
termined to be entitled exceeds 50% of the amount of his claim.
Otherwise, the Expenses incurred by Indemnitee in connection
with such judicial adjudication shall be appropriately pro-
rated.
(c) In any judicial proceeding described in this
Section 9.2, the Corporation shall bear the burden of proving
that Indemnitee is not entitled to the relief sought, even if
the Determining Body prior to the Determination Date determined
that Indemnitee failed to meet the Standard of Conduct. If
prior to the Determination Date the Determining Body failed to
make a determination that Indemnitee did not meet the Standard
of Conduct, it shall not be a defense to such suit that
Indemnitee did not meet the Standard of Conduct.
9.3 Reformation. If any provision of this Section 9 is
determined by a court having jurisdiction over the matter to
violate or conflict with applicable law, the court shall be
empowered to modify or reform such provision so that, as
modified or reformed, such provision provides the maximum
indemnification permitted by Delaware Law, and such provision,
as so modified or reformed, and the balance of this Section 9
shall be applied in accordance with their terms. Without
limiting the generality of the foregoing, if any portion of
this Section 9 shall be invalidated on any ground, the
Corporation shall nevertheless indemnify an Indemnitee to the
full extent permitted by any applicable portion of this Section
9 that shall not have been invalidated and to the full extent
permitted by law with respect to that portion that has been in-
validated.
9.4 Successors and Assigns. This Section 9 shall be
binding upon the Corporation, its successors and assigns, and
shall inure to the benefit of the Indemnitee's heirs,
administrators, executors, personal representatives and assigns
and to the benefit of the Corporation, its successors and
assigns.
9.5 Amendments. No amendment to or modification of
this Section 9 or any portion hereof shall limit any
Indemnitee's entitlement to indemnification in accordance with
the provisions hereof with respect to any acts or omissions of
Indemnitee which occur or accrue prior to such amendment or
modification.
9.6 Contribution. If the indemnity provided for in
this Section 9 is for any reason unavailable or insufficient to
hold harmless an Indemnitee with respect to any Expenses, the
Corporation shall make a contribution to the Indemnitee for
such liabilities to which the Indemnitee may be subject in such
proportion as is appropriate to reflect the intent of this
Section 9.
9.7 Reliance. Each person who is serving as an
Indemnitee shall be deemed to be doing so in reliance upon the
indemnification provided for in this Section 9. The rights of
an Indemnitee hereunder shall be contract rights and shall vest
in the Indemnitee upon the occurrence of the event, or the
first event in a chain of events, giving rise to such Claim;
provided that the adoption of the Bylaws shall not affect any
right or obligation of the Corporation or of any Indemnitee
which existed prior to such adoption.
9.8 Nonexclusivity. (a) The rights conferred herein
on any person shall (i) be severable, (ii) not be exclusive of
any other rights which such person may have or hereafter
acquire under any statute, certificate of incorporation,
contract or other agreement, authorization of stockholders or
disinterested directors or otherwise, and (iii) continue as to
an Indemnitee who has ceased to serve on behalf of the
Corporation in respect of all claims arising out of action (or
inaction) occurring prior to such time.
(b) It is the intent of the Corporation to indemnify
and hold harmless Indemnitee to the fullest extent permitted by
Delaware Law, as such law exists or may be amended after the
date the Bylaws are adopted, but, in the case of any such
amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than Delaware
Law permitted prior to the amendment, notwithstanding any
provision in Section 9 to the contrary.
9.9 Insurance. The Corporation may procure or
maintain insurance or other similar arrangement on behalf of
any Indemnitee or any person who is or was an employee or agent
of the Corporation, or is serving at the request of the
Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
any liability asserted against or incurred by him in his
capacity as such, or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him
against such liability under the provisions of Delaware Law.
Without limiting the power of the Corporation to procure or
maintain any other kind of insurance or similar arrangement,
the Corporation may create a trust fund or other form of self-
insurance arrangement for the benefit of any Indemnitee or such
other person to the fullest extent authorized by Delaware Law.
SECTION 10
General Provisions
10.1 Fixing Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or
to express unanimous consent to corporate action in writing
without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect to any change,
conversion or exchange of stock or for the purpose of any other
lawful action, the Board may fix in advance a record date which
shall not be more than 60 nor less than ten days before the
date of such meeting, nor more than 60 days prior to any other
action. Except as otherwise provided in the Bylaws, a
determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, provided, however, that the Board
may fix a new record date for the adjourned meeting.
10.2 Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate
of Incorporation, if any, may be declared by the Board at any
regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest
of the Corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
10.3 Checks. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board may from time to
time designate.
10.4 Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board.
10.5 Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and shall be in such form
as may be approved from time to time by the incorporator, or,
after the appointment of directors, the Board of Directors.
The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
SECTION 11
Definitions
The following terms, for all purposes of the Bylaws, shall
have the following meaning:
"Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations promulgated under the
Securities Exchange Act of 1934, as amended (the term
"registrant" in such Rule 12b-2 meaning in this case the
Corporation); provided, however, that in no event shall
the Corporation, any of its Subsidiaries, any employee
benefit plan or any of the other persons or entities
exempted from the definition of Interested Stockholder as
provided in the Certificate of Incorporation be deemed to
be an Affiliate or Associate of any Interested
Stockholder.
A person shall be deemed to be the "Beneficial Owner"
of any shares of Capital Stock (regardless whether owned
of record):
(1) Which that person or any of its
Affiliates or Associates, directly or
indirectly, owns beneficially;
(2) Which such person or any of its
Affiliates or Associates has (A) the right to
acquire (whether exercisable immediately or only
after the passage of time) pursuant to any
agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or
(B) the right to vote pursuant to any agreement,
arrangement or understanding; or
(3) Which are beneficially owned, directly
or indirectly, by any other person with which
such person or any of its Affiliates or
Associates has any agreement, arrangement or
understanding for the purpose of acquiring,
holding, voting or disposing of any shares of
voting capital stock of the Corporation or any
Subsidiaries.
"Capital Stock" means any Common Stock, Preferred
Stock or other shares of capital stock of the Corporation.
"Certificate of Incorporation" shall mean the
certificate of incorporation of the Corporation, as it may
be amended from time to time.
"Claim" shall mean any threatened, pending or
completed claim, action, suit or proceeding, including
appeals, whether civil, criminal, administrative or
investigative and whether made judicially or extra-
judicially, including any action by or in the right of the
Corporation, or any separate issue or matter therein, as
the context requires.
"Common Stock" shall mean the common stock of the
Corporation, as provided for in the Certificate of
Incorporation.
"Continuing Director" shall have the meaning ascribed
to it in the Certificate of Incorporation.
"Delaware Law" shall mean the General Corporation Law
of the State of Delaware.
"Determining Body" shall mean (i) those members of
the Board of Directors who do not have a direct or
indirect interest the Claim for which indemnification is
being sought ("Impartial Directors"), if there are at
least two Impartial Directors, (ii) a committee of at
least two Impartial Directors appointed by the Board or a
duly authorized committee thereof (regardless of whether
the directors voting on such appointment are Impartial
Directors) and composed of Impartial Directors or (iii) if
there are fewer than two Impartial Directors or if the
Board or a duly authorized committee thereof so directs
(regardless whether the members thereof are Impartial
Directors), independent legal counsel, which may be the
regular outside counsel of the Corporation, as determined
by the Impartial Directors or, if no such directors exist,
the full Board.
"Disbursing Officer" shall mean the Chief Financial
Officer of the Corporation or, if the Chief Financial
Officer has a direct or indirect interest in the Claim for
which indemnification is being sought, any officer who
does not have such an interest and who is designated by
the Chief Executive Officer to be the Disbursing Officer
with respect to indemnification requests related to the
Claim, which designation shall be made promptly after
receipt of the initial request for indemnification with
respect to such Claim.
"Expenses" shall mean any expenses or costs,
including, without limitation, attorney's fees, judgments,
punitive or exemplary damages, fines, excise taxes or
amounts paid in settlement.
"Indemnitee" shall mean any person who is or was a
director or officer of the Corporation or is or was
serving at the request of the Corporation as a director,
officer or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise (including,
without limitation, employee benefit plans of the
Corporation).
"Preferred Stock" shall mean the preferred stock of
the Corporation, as provided for in the Certificate of
Incorporation.
"Subsidiary" means any corporation, partnership or
other entity of which the Corporation, directly or
indirectly, owns voting stock or similar interests having
a majority of the votes entitled to be cast.
"Voting Stock" means the outstanding shares of
Capital Stock entitled to vote generally in an election of
directors, excluding shares deemed Excess Shares (as
defined in the Certificate of Incorporation) by the Board
of Directors.
SECTION 12
Amendments
The Corporation's Bylaws may be altered, amended, or
repealed or new Bylaws may be adopted by:
(a) the stockholders, but only upon the affirmative
vote of holders of not less than 80% of the Voting Stock,
voting together as a single class; or
(b) the Board, but only upon the affirmative vote of
both (i) a majority of the directors then in office and
(ii) a majority of the Continuing Directors, voting as a
separate group.
EXHIBIT 4.1
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
Series A and Series B
8-1/2% Senior Notes due 2005
INDENTURE
Dated as of July 21, 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 Payment.......... 51
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
This Indenture, dated as of July 21, 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% Series A Senior
Notes due 2005 (the "Series A Notes") and the 8-1/2% Series B
Senior Notes due 2005 (the "Series B Notes" and, together with
the Series A 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 date of this
Indenture 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 date of original
issuance of the Series A Notes 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 B Notes for Series A Notes.
"Existing Indebtedness" means Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under
the Credit Facility) in existence on the date of this
Indenture, 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 Bear, Stearns & Co. Inc.,
Jefferies & Company, 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 date of this Indenture, (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.
"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 is in effect on the date of this Indenture, (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 A Notes and the Series B 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 A Notes for
original issue up to the aggregate principal amount stated in
paragraph 4 of the Notes and (ii) the Series B Notes from time
to time for issue only in exchange for a like principal amount
of Series A 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 A Notes or Series B 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 B 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 onAugust 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 $71.5 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.
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 date
of this Indenture (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 date of this
Indenture 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 date of this Indenture
is 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; (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
date of this Indenture, (2) this Indenture and the 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 and this 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 Debt 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. 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.
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 date of this Indenture, 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 is created
after the date of this Indenture, 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 reorgan-
ization 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
statements 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 date of this Indenture, 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 date of
this Indenture, 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 supple-
mental 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 date of the execution hereof.
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.
Place St. Charles
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]
SIGNATURES
Trico Marine Services, Inc.
By: /s/ Thomas E. Fairley
--------------------------
Name: Thomas E. Fairley
Title: Chief Executive Officer and
President
Trico Marine Assets, Inc.
By: /s/ Thomas E. Fairley
--------------------------
Name: Thomas E. Fairley
Title: Chairman of the Board,
Chief Executive Officer and
President
Trico Marine Operators, Inc.
By: /s/ Thomas E. Fairley
--------------------------
Name: Thomas E. Fairley
Title: Chairman of the Board,
Chief Executive Officer and
President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By: /s/ Mauri J. Cowen
----------------------------
Mauri J. Cowen
Vice President and Trust Officer
Exhibit A-1
(Face of Note)
8-1/2% [Series A] [Series B] Senior Notes due 2005
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% [Series A][Series B] Senior Notes due 2005
[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
A Notes for Series B Notes in the Exchange Offer or upon the transfer
of the Series A 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 July 21,
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 July 21, 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 $110,000,000 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 $71.5 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 (as
"Asset Sale Offer") pursuant to Section 3.09 of the Indenture
to purchase the maximum principal amount of Notes 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 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
Excess Proceeds, the Company (or such Subsidiary) may use such
deficiency for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, 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). Holders of 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 purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of
the 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
date of the Indenture, 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 July 21, 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 A-2
(Face of Regulation S Temporary Global Note)
8-1/2% [Series A][Series B] Senior Notes due 2005
No.
$_______________
CUSIP NO.
Trico Marine Services, Inc.
promises to pay to Cede & Co. 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 Regulation S Temporary Global Note)
8-1/2% [Series A][Series B] Senior Note due 2005
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 INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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.
THE RIGHTS ATTACHING TO THIS REGULATION S
TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON
PRIOR TO THE EXCHANGE OF THIS NOTE FOR A
Regulation S PERMANENT GLOBAL NOTE AS CONTEMPLATED
BY THE INDENTURE.
Trico Marine Services, Inc., a
Delaware corporation (the "Company"),
promises to pay interest on the principal
amount of this Note at the rate of 8 1/2% per
annum from July 21, 1997 until maturity
and shall pay the Liquidated Damages
payable pursuant to Section 5 of the
Registration Rights Agreement referred to
in the Indenture. The Company will pay
interest and Liquidated Damages, if any,
in United States dollars semi-annually in
arrears on February 1 and August 1,
commencing on 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 shall 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 equal to the then
applicable interest rate on the Notes; 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 period) from time to time on demand
at the same rate to the extent lawful.
Interest shall be computed on the basis of
a 360-day year comprised of twelve 30-day
months.
This Regulation S Temporary Global
Note is issued in respect of an issue of
8-1/2% Senior Notes due 2005 (the "Notes")
of the Company, limited to $110,000,000 in
aggregate principal amount, plus amounts,
if any, sufficient to pay premium, if any,
interest or Liquidated Damages, if any on
outstanding Notes. The Company issued
Notes under an Indenture (the "Indenture")
dated as of July 21, 1997, among the
Company, the Guarantors and the Trustee.
This Regulation S Temporary Global Note is
governed by the terms and conditions of
the Indenture governing the Notes, which
terms and conditions are incorporated
herein by reference and, except as
otherwise provided herein, shall be
binding on the Company and the Holder
hereof as if fully set forth herein.
Unless the context otherwise requires, the
terms used herein shall have the meanings
specified in the Indenture.
Until this Regulation S Temporary
Global Note is exchanged for Regulation S
Permanent Global Notes, the Holder hereof
shall not be entitled to receive payments
of interest or Liquidated Damages, if any,
hereon although interest and Liquidated
Damages, if any, will continue to accrue;
until so exchanged in full, this
Regulation S Temporary Global Note shall
in all other respects be entitled to the
same benefits as other Notes under the
Indenture.
This Regulation S Temporary Global
Note is exchangeable in whole or in part
for one or more Regulation S Permanent
Global Notes or 144A Global Notes only (i)
on or after the termination of the 40-day
restricted period (as defined in
Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion
of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange
of this Regulation S Temporary Global Note
for one or more Regulation S Permanent
Global Notes or 144A Global Notes, the
Trustee shall cancel this Regulation S
Temporary Global Note.
This Regulation S Temporary Global
Note shall not become valid or obligatory
until the certificate of authentication
hereon shall have been duly manually
signed by the Trustee in accordance with
the Indenture. This Regulation S
Temporary Global Note shall be governed by
and construed in accordance with the laws
of the State of the New York. All
references to "$," "Dollars," "dollars" or
"U.S. $" are to such coin or currency of
the United States of America as at the
time shall be legal tender for the payment
of public and private debts therein.
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of
this Regulation S Temporary Global Note
for other Global Notes have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of increase of Signature of
decrease in in this Global Note authorized officer
Principal Amount Principal Amount following such of
of this Global of this Global decrease Trustee or Note
Date of Exchange Note Note (or increase) Custodian
- ---------------- ---------------- ------------------ ---------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
Exhibit B-1
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER
FROM 144A GLOBAL NOTE TO REGULATION S
GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the
Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture, dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the Guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This letter relates to $
_______________ principal amount of Notes
which are evidenced by one or more 144A
Global Notes and held with the Depository
in the name of_____________ (the
"Transferor"). The Transferor has
requested a transfer of such beneficial
interest in the Notes to a Person who will
take delivery thereof in the form of an
equal principal amount of Notes evidenced
by one or more Regulation S Global Notes,
which amount, immediately after such
transfer, is to be held with the
Depository through Euroclear or Cedel or
both.
In connection with such request and
in respect of such Notes, the Transferor
hereby certifies that such transfer has
been effected in compliance with the
transfer restrictions applicable to the
Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 under
the United States Securities Act of 1933,
as amended (the "Securities Act"), and
accordingly the Transferor hereby further
certifies that:
(1) The offer of the Notes was
not made to a person in the United
States;
(2) either:
(a) at the time the buy
order was originated, the
transferee was outside the
United States or the Transferor
and any person acting on its
behalf reasonably believed and
believes that the transferee was
outside the United States; or
(b) the transaction was
executed in, on or through the
facilities of a designated
offshore securities market and
neither the Transferor nor any
person acting on its behalf
knows that the transaction was
prearranged with a buyer in the
United States;
(3) no directed selling efforts
have been made in contravention of
the requirements of Rule 904(b) of
Regulation S;
(4) the transaction is not part
of a plan or scheme to evade the
registration provisions of the
Securities Act; and
(5) upon completion of the
transaction, the beneficial interest
being transferred as described above
is to be held with the Depository
through Euroclear or Cedel or both.
Upon giving effect to this request to
exchange a beneficial interest in a 144A
Global Note for a beneficial interest in a
Regulation S Global Note, the resulting
beneficial interest shall be subject to
the restrictions on transfer applicable to
Regulation S Global Notes pursuant to the
Indenture and the Securities Act and, if
such transfer occurs prior to the end of
the 40-day restricted period associated
with the initial offering of Notes, the
additional restrictions applicable to
transfers of interests in the Regulation S
Temporary Global Note.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors. Terms used in this
certificate and not otherwise defined in
the Indenture have the meanings set forth
in Regulation S under the Securities Act.
[Insert Name of Transferor]
By____________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit B-2
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO
144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii)
of the Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This letter relates to $_________
principal amount of Notes which are
evidenced by one or more Regulation S
Global Notes and held with the Depository
through Euroclear or Cedel in the name of
________ (the "Transferor"). The
Transferor has requested a transfer of
such beneficial interest in the Notes to a
Person who will take delivery thereof in
the form of an equal principal amount of
Notes evidenced by one or more 144A Global
Notes, to be held with the Depository.
In connection with such request and
in respect of such Notes, the Transferor
hereby certifies that:
[CHECK ONE]
__ such transfer is being effected
pursuant to and in accordance with Rule
144A under the United States Securities
Act of 1933, as amended (the
"Securities Act"), and, accordingly,
the Transferor hereby further certifies
that the Notes are being transferred to
a Person that the Transferor reasonably
believes is purchasing the Notes for
its own account, or for one or more
accounts with respect to which such
Person exercises sole investment
discretion, and such Person and each
such account is a "qualified
institutional buyer" within the meaning
of Rule 144A in a transaction meeting
the requirements of Rule 144A;
or
__ such transfer is being effected
pursuant to and in accordance with Rule
144 under the Securities Act;
or
__ such transfer is being effected
pursuant to an exemption under the
Securities Act other than Rule 144A,
Rule 144 or Rule 904 to a Person who is
an Institutional Accredited Investor
and the Transferor further certifies
that such transfer complies with the
transfer restrictions applicable to
beneficial interests in Global Notes
bearing the legend set forth in Section
2.06(f) of the Indenture and the
requirements of the exemption claimed,
which certification is supported by (a)
if such transfer is in respect of a
principal amount of Notes at the time
of transfer of $100,000 or more, a
certificate executed by the transferee
in the form of Exhibit C to the
Indenture, or (b) if such transfer is
in respect of a principal amount of
Notes at the time of transfer of less
than $100,000, (i) a certificate
executed in the form of Exhibit C to
the Indenture and (ii) an Opinion of
Counsel provided by the Transferor or
the transferee (a copy of which the
Transferor has attached to this
certification), to the effect that (1)
such transfer is in compliance with the
Securities Act and (2) such transfer
complies with any applicable blue sky
securities laws of any state of the
United States;
or
__ such transfer is being effected
pursuant to an exemption from the
registration requirements of the
Securities Act other than one described
above, and the Transferor hereby
further certifies that the Notes are
being transferred in compliance with
the transfer restrictions applicable to
the Global Notes and in accordance with
the requirements of the exemption
claimed, which certification is
supported by an Opinion of Counsel,
provided by the transferor or the
transferee (a copy of which the
Transferor has attached to this
certification) in form reasonably
acceptable to the Company and to the
Registrar, to the effect that such
transfer is in compliance with the
Securities Act and any applicable blue
sky laws of any state of the United
States;
or
__ such transfer is being effected
pursuant to an effective registration
statement under the Securities Act;
and such Notes are being transferred in
compliance with any applicable blue sky
securities laws of any state of the United
States or any other applicable
jurisdiction.
Upon giving effect to this request to
exchange a beneficial interest in
Regulation S Global Notes for a beneficial
interest in 144A Global Notes, the
resulting beneficial interest shall be
subject to the restrictions on transfer
applicable to 144A Global Notes pursuant
to the Indenture and the Securities Act.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors.
[Insert Name of Transferor]
By___________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit B-3
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER
OF DEFINITIVE NOTES
(Pursuant to Section 2.06(b) of the
Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This relates to $
principal amount of Notes which are
evidenced by one or more Definitive Notes
in the name of (the
"Transferor"). The Transferor has
requested an exchange or transfer of such
Definitive Note(s) in the form of an equal
principal amount of Notes evidenced by one
or more Definitive Notes, to be delivered
to the Transferor or, in the case of a
transfer of such Notes, to such Person as
the Transferor instructs the Trustee.
In connection with such request and
in respect of the Notes surrendered to the
Trustee herewith for exchange (the
"Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
__ the Surrendered Notes are being
acquired for the Transferor's own
account, without transfer;
or
__ the Surrendered Notes are being
transferred to the Company or one of its
Subsidiaries;
or
__ the Surrendered Notes are being
transferred pursuant to and in
accordance with Rule 144A under the
United States Securities Act of 1933,
as amended (the "Securities Act"),
and, accordingly, the Transferor
hereby further certifies that the
Surrendered Notes are being
transferred to a Person that the
Transferor reasonably believes is
purchasing the Surrendered Notes for
its own account, or for one or more
accounts with respect to which such
Person exercises sole investment
discretion, and such Person and each
such account is a "qualified
institutional buyer" within the
meaning of Rule 144A, in each case in
a transaction meeting the
requirements of Rule 144A;
or
__ the Surrendered Notes are being
transferred in a transaction
permitted by Rule 144 under the
Securities Act;
or
__ the Surrendered Notes are being
transferred pursuant to an exemption
under the Securities Act other than
Rule 144A, Rule 144 or Rule 904 to
Person who is an Institutional
Accredited Investor and the
Transferor further certifies that the
transfer complies with the transfer
restrictions applicable to Definitive
Notes bearing the legend set forth in
Section 2.06(f) of the Indenture and
the requirements of the exemption
claimed, which certification is
supported by (a) if such transfer is
in respect of a principal amount of
Notes at the time of transfer of
$100,000 or more, a certificate
executed by the transferee in the
form of Exhibit C to the Indenture,
or (b) if such transfer is in respect
of a principal amount of Notes at the
time of transfer of less than
$100,000, (i) a certificate executed
in the form of Exhibit C to the
Indenture and (ii) an Opinion of
Counsel provided by the Transferor or
the transferee (a copy of which the
Transferor has attached to this
certification), to the effect that
(1) such transfer is in compliance
with the Securities Act and (2) such
transfer complies with any applicable
blue sky securities laws of any state
of the United States;
or
__ the Surrendered Notes are being
transferred pursuant to an effective
registration statement under the
Securities Act;
and the Surrendered Notes are being
transferred in compliance with any
applicable blue sky securities laws of any
state of the United States or any other
applicable jurisdiction.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors.
[Insert Name of Transferor]
By__________________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit B-4
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER FROM 144A GLOBAL
NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO DEFINITIVE NOTE
(Pursuant to Section 2.06(c) of the
Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This letter relates to $__________
principal amount of Notes which are
evidenced by a beneficial interest in one
or more 144A Global Notes or Regulation S
Permanent Global Notes in the name of
(the "Transferor"). The Transferor has
requested an exchange or transfer of such
beneficial interest in the form of an
equal principal amount of Notes evidenced
by one or more Definitive Notes, to be
delivered to the Transferor or, in the
case of a transfer of such Notes, to such
Person as the Transferor instructs the
Trustee.
In connection with such request and
in respect of the Notes surrendered to the
Trustee herewith for exchange (the
"Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
__ the Surrendered Notes are being
transferred to the beneficial owner
of such Notes;
or
__ the Surrendered Notes are being
transferred to the Company or one of
its Subsidiaries;
or
__ the Surrendered Notes are being
transferred pursuant to and in
accordance with Rule 144A under the
United States Securities Act of 1933,
as amended (the "Securities Act"),
and, accordingly, the Transferor
hereby further certifies that the
Surrendered Notes are being
transferred to a Person that the
Transferor reasonably believes is
purchasing the Surrendered Notes for
its own account, or for one or more
accounts with respect to which such
Person exercises sole investment
discretion, and such Person and each
such account is a "qualified
institutional buyer" within the
meaning of Rule 144A, in each case in
a transaction meeting they
requirements of Rule 144A;
or
__ the Surrendered Notes are being
transferred in a transaction
permitted by Rule 144 under the
Securities Act;
or
__ the Surrendered Notes are being
transferred pursuant to an effective
registration statement under the
Securities Act;
or
__ the Surrendered Notes are being
transferred pursuant to an exemption
under the Securities Act other than
Rule 144A, Rule 144 or Rule 904 to a
Person who is an Institutional
Accredited Investor and the
Transferor further certifies that the
transfer complies with the transfer
restrictions applicable to beneficial
interests in Global Notes bearing the
legend set forth in Section 2.06(f)
of the Indenture and the requirements
of the exemption claimed, which
certification is supported by (a) if
such transfer is in respect of a
principal amount of Notes at the time
of transfer of $100,000 or more, a
certificate executed by the
transferee in the form of Exhibit C
to the Indenture, or (b) if such
transfer is in respect of a principal
amount of Notes at the time of
transfer of less than $100,000, (i) a
certificate executed in the form of
Exhibit C to the Indenture and (ii)
an Opinion of Counsel provided by the
Transferor or the transferee (a copy
of which the Transferor has attached
to this certification), to the effect
that (1) such transfer is in
compliance with the Securities Act
and (2) such transfer complies with
any applicable blue sky securities
laws of any state of the United
States;
and the Surrendered Notes are being
transferred in compliance with any
applicable blue sky securities laws of any
state of the United States or any other
applicable jurisdiction.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors.
[Insert Name of Transferor]
By ________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit C
FORM OF CERTIFICATE TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
--------------, -------
Texas Commerce Bank National Association
as Trustee and Registrar
Ladies and Gentleman:
We are delivering this letter in
connection with an offering of 8-1/2%
Senior Notes due 2005 (the "Notes") of Trico
Marine Services, Inc., a Delaware corporation
(the "Company"), all as described in the
Offering Memorandum (the "Offering Memorandum")
relating to the offering of the Notes. We
hereby confirm that:
(i) we are an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended
(the "Securities Act"), or an entity in which
all of the equity owners are accredited investors
within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act (an
"Institutional Accredited Investor");
(ii) any purchase of Notes by us will be
for our own account or for the account of
one or more other Institutional Accredited
Investors;
(iii) in the event that we purchase any
Notes, we will acquire Notes having a minimum
purchase price of at least $100,000 for our
own account and for each separate account
for which we are acting;
(iv) we have such knowledge and experience
in financial and business matters that we are
capable of evaluating the merits and risks of
purchasing Notes and we, and any accounts
for which we are acting, are able to bear the
economic risks of its or their investment;
(v) we are not acquiring Notes with a
view to any distribution thereof in a transaction
that would violate the Securities Act or
the securities laws of any State of the
United States or any other applicable jurisdiction;
provided that the disposition of our property
and the property of any accounts for which we
are acting as fiduciary shall remain at all times
within our control; and
(vi) we have received a copy of the
Offering Memorandum and acknowledge that we
have had access to such financial and other
information, and have been afforded the
opportunity to ask such questions of representatives
of the Company and receive answers thereto,
as we deem necessary in connection with our
decision to purchase Notes.
We understand that the Notes were offered
in a transaction not involving any public
offering within the meaning of the Securities
Act and that the Notes have not been registered
under the Securities Act, and we agree, on
our own behalf and on behalf of each account
for which we acquire any Notes, that such
Notes may be offered, resold, pledged or otherwise
transferred only (i) to a person whom we
reasonably believe to be a qualified
institutional buyer (as defined in Rule
144A under the Securities Act) in a
transaction meeting the requirements of
Rule 144A under the Securities Act, in a
transaction meeting the requirements of
Rule 144 under the Securities Act, outside
the United States in a transaction meeting
the requirements of Rule 904 under the
Securities Act, or 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), (ii) to the Company
or (iii) 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. We understand that the
registrar will not be required to accept
for registration of transfer any Notes,
except upon presentation of evidence
satisfactory to the Company that the
foregoing restrictions on transfer have
been complied with.
We acknowledge that you and the
Company will rely upon our confirmations,
acknowledgments and agreements set forth
herein, and we agree to notify you
promptly in writing if any of our
representations or warranties herein
ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
___________________________
[Name of Purchaser]
By_________________________
Name:
Title:
Address:
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:
Exhibit E
TRICO MARINE SERVICES, INC.
and
the Guarantors named herein
______________________________________
SERIES A AND SERIES B
8-1/2% SENIOR NOTES DUE 2005
________________________________________
___________________
FORM OF SUPPLEMENTAL INDENTURE
AND AMENDMENT - SUBSIDIARY GUARANTEE
DATED AS OF ___________, ____
___________________
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
___________________
This SUPPLEMENTAL INDENTURE, dated as
of __________ ___, ____, is among Trico
Marine Services, Inc., a Delaware
corporation (the "Company"), each of the
parties identified under the caption
"Guarantors" on the signature page hereto
(the "Guarantors") and Texas Commerce Bank
National Association, as Trustee.
RECITALS
WHEREAS, the Company, the Guarantors
and the Trustee entered into an Indenture,
dated as of July 21, 1997 (the
"Indenture"), pursuant to which the
Company issued $110,000,000 in principal
amount of 8-1/2% Senior Notes due 2005
(the "Notes"); and
WHEREAS, Section 9.01(f) of the
Indenture provides that the Company and
the Trustee may amend or supplement the
Indenture in order to execute a guarantee
(a "Subsidiary Guarantee") to comply with
Section 10.02 or 10.04 thereof without the
consent of the Holders of the Notes; and
WHEREAS, all acts and things
prescribed by the Indenture, by law and by
the Certificate of Incorporation and the
Bylaws of the Company, of the Guarantors
and of the Trustee necessary to make this
Supplemental Indenture a valid instrument
legally binding on the Company, the
Guarantors and the Trustee, in accordance
with its terms, have been duly done and
performed;
NOW, THEREFORE, to comply with the
provisions of the Indenture and in
consideration of the above premises, the
Company, the Guarantors and the Trustee
covenant and agree for the equal and
proportionate benefit of the respective
Holders of the Notes as follows:
ARTICLE 1
Section 1.01. This Supplemental
Indenture is supplemental to the Indenture
and does and shall be deemed to form a
part of, and shall be construed in
connection with and as part of, the
Indenture for any and all purposes.
Section 1.02. This Supplemental
Indenture shall become effective
immediately upon its execution and
delivery by each of the Company, the
Guarantors and the Trustee.
ARTICLE 2
From this date, in accordance with
Section 10.02 or 10.04 and by executing
this Supplemental Indenture and the
accompanying Subsidiary Guarantee (a copy
of which is attached hereto), the
Guarantors whose signatures appear below
are subject to the provisions of the
Indenture to the extent provided for in
Article 10 thereunder.
ARTICLE 3
Section 3.01. Except as specifically
modified herein, the Indenture and the
Notes are in all respects ratified and
confirmed (mutatis mutandis) and shall
remain in full force and effect in
accordance with their terms with all
capitalized terms used herein without
definition having the same respective
meanings ascribed to them as in the
Indenture.
Section 3.02. Except as otherwise
expressly provided herein, no duties,
responsibilities or liabilities are
assumed, or shall be construed to be
assumed, by the Trustee by reason of this
Supplemental Indenture. This Supplemental
Indenture is executed and accepted by the
Trustee subject to all the terms and
conditions set forth in the Indenture with
the same force and effect as if those
terms and conditions were repeated at
length herein and made applicable to the
Trustee with respect hereto.
Section 3.03. THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
Section 3.04. The parties may sign
any number of copies of this Supplemental
Indenture. Each signed copy shall be an
original, but all of such executed copies
together shall represent the same
agreement.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental
Indenture to be duly executed, all as of
the date first written above.
TRICO MARINE SERVICES, INC.
By__________________________________
Name:
Title:
GUARANTORS
[______________________]
By__________________________________
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By__________________________________
Name:
Title:
EXHIBIT 4.2
(Face of Note)
8-1/2% [Series A] [Series B] Senior Notes due 2005
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% [Series A][Series B] Senior Notes due 2005
[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
A Notes for Series B Notes in the Exchange Offer or upon the transfer
of the Series A 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 July 21,
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 July 21, 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 $110,000,000 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 $71.5 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 (as
"Asset Sale Offer") pursuant to Section 3.09 of the Indenture
to purchase the maximum principal amount of Notes 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 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
Excess Proceeds, the Company (or such Subsidiary) may use such
deficiency for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, 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). Holders of 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 purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of
the 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
date of the Indenture, 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 July 21, 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 10.1
VESSEL PURCHASE AGREEMENT
dated as of June 18, 1997
between
TRICO MARINE ASSETS, INC.
and
OTTO CANDIES, INC.
Sale and Purchase
of
M/V BLANCHE CANDIES
M/V LENA CANDIES
M/V ASHLEY CANDIES
M/V AGNES CANDIES
M/V JUANITA CANDIES
M/V HATTY CANDIES
M/V KATHY CANDIES
M/V JEANNE CANDIES
M/V ADELE CANDIES
M/V BEULAH CANDIES
M/V NICKIE MARIE CANDIES
and
M/V RITA CANDIES
VESSEL PURCHASE AGREEMENT
This VESSEL PURCHASE AGREEMENT (this "Agreement"), dated
as of June 18, 1997, is by and between Trico Marine Assets,
Inc., a Delaware corporation (the "Buyer"), and Otto Candies,
Inc., a Louisiana corporation (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller is the owner of the U.S. flagged
supply vessels listed on Schedule "A" hereto and the parts,
equipment, machinery, implements, accessories, appurtenances,
supplies and inventory related to the Vessels (collectively,
the "Vessels");
WHEREAS, the Seller desires to sell the Vessels to the
Buyer upon the terms and conditions set forth herein; and
WHEREAS, the Buyer desires to acquire the Vessels upon
such terms.
NOW, THEREFORE, in consideration of the mutual promises
and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Buyer and Seller hereto represent and agree
as follows:
SECTION 1
SALE AND PURCHASE OF THE VESSELS
1.1 Sale of the Vessels. The Seller does hereby agree to
sell to the Buyer, and the Buyer does hereby agree to purchase
from the Seller, the Vessels in accordance with the terms
hereof. Other than the Vessels, the Buyer shall acquire no
other assets or property, including any goodwill, intangibles
or contractual rights of the Seller, land based facilities,
employees, distribution systems, customers, operating rights or
production techniques of the Seller pursuant to this Agreement.
1.2 Purchase Price. (a) The Buyer shall pay to the
Seller $69,000,000 (as it may be adjusted pursuant to this
Section 1, the "Purchase Price") for the Vessels subject to and
in the manner provided in Section 2. If, prior to the Closing
Date, any Vessel shall become an actual or constructive total
loss, the Purchase Price shall be reduced by $5,636,000 for
each such Vessel, and such Vessel shall not be sold or
transferred to the Buyer at the Closing. The parties agree
that the Purchase Price shall be allocated among the Vessels on
the Closing Date based on the relative fair market value of the
Vessels.
1.3 "As is, Where is" Sale. The Vessels are to be sold
in "As Is" condition, with no warranties whatsoever, except as
set forth in Section 3.4 hereof. The bill of sale delivered
pursuant to Section 2.1(b)(1) with respect to each Vessel shall
contain the following language:
Buyer has inspected each Vessel and is fully
satisfied with the condition of each. It is
understood and agreed that the Vessels are sold
by the Seller and purchased by the Buyer "AS IS,
WHERE IS," with no warranty whatsoever (other
than as set forth in Section 3.4 of the
Agreement), neither for structure nor condition,
design, operation, seaworthiness, value,
marketability, merchantability, usefulness or
suitability for any purpose, whether expressed
or implied, NOT EVEN FOR THE RETURN OF THE
PURCHASE PRICE. Buyer expressly waives any and
all warranties (other than as set forth in
Section 3.4 of the Agreement), including those
pertaining to merchantability or fitness for a
particular use, as well as those warranties
against hidden and latent defects (i.e., defects
in a Vessel sold which render it useless or
render its use so inconvenient or imperfect that
the Buyer would not have purchased it had it
known of the vice or defect); more specifically,
that warranty imposed by Louisiana Civil Code
Article 2475 with respect to a seller's warranty
against latent or hidden defects. Buyer
forfeits the right to avoid the sale or reduce
the purchase price on account of any hidden or
latent vice or defect in any of the Vessels sold
pursuant to Louisiana Civil Code Article 2520
and 2541. The listing of warranties to be
waived is by way of example, and not intended as
an exclusive list, as all warranties (other than
as set forth in Section 3.4 of the Agreement)
are waived.
1.4 Closing. The consummation of the sale and purchase
of the Vessels (other than the M/V Rita Candies) (the
"Closing") shall take place in accordance with the terms of
this Agreement on a business day to be mutually agreed upon by
Buyer and Seller (the "Closing Date") on or before August 15,
1997. Subject to Section 2.2 hereof, on the Closing Date, the
Buyer shall deliver the Purchase Price to the Seller, the
Seller shall cause the Vessels to be delivered to the Buyer and
the Buyer and the Seller each shall provide the other
documents, certificates and instruments required to be
delivered pursuant to Section 2.1. Each of the parties agree
that time is of the essence and that it will use its best
efforts to satisfy the conditions to Closing set forth in
Section 2.1 that are within its control and that are capable of
being satisfied prior to the Closing Date not later than the
second business day in advance of the date the parties
establish as the Closing Date.
1.5 Condition and Access to the Vessels.
(a) Notwithstanding anything to the contrary herein,
the Buyer and the Seller agree that the Vessels shall, on the
Closing Date, be in substantially the same condition as on the
date hereof, ordinary wear and tear excepted. If any Vessel
shall suffer any damage or loss (other than an actual or
constructive total loss) and such damage or loss is not
repaired prior to the Closing, then Seller agrees to be
responsible following the Closing (it being the intent of the
Buyer and Seller that the Closing not be delayed as a result of
the need to make any such repairs) for such repairs to the
Vessel suffering such damage or loss as may be necessary to
restore the Vessel to the condition required under this Section
1.5(a). The Seller agrees to cause the Vessels to continue to
be insured by hull and machinery and protection and indemnity
insurance in the amounts and with the coverages currently in
force until the Closing Date. Prior to the Closing, the Seller
shall provide Buyer with original cover notes evidencing such
insurance covering the Vessels for the three years prior to
Closing.
(b) The Buyer shall, at its option, have a period of
fifteen business days from the date hereof to conduct a
reasonable due diligence investigation of each of the Vessels
and the documentation related thereto, which inspection must be
satisfactory to the Buyer. All such investigations shall be
conducted at times convenient to Seller and at all times shall
be made under the supervision of the Seller.
(c) The Seller agrees to use its best efforts to
complete as soon as reasonably possible the modification,
upgrade and lengthening of the M/V Rita Candies in order to
have the specifications listed on Schedule "A" hereto with
respect to the M/V Rita Candies be accurate in all material
respects. The Buyer shall have access to the M/V Rita Candies
and the documentation related thereto from the date hereof
until its delivery pursuant to Section 2.2. Buyer agrees not
to interfere with or in any way delay the modification, upgrade
or lengthening of the M/V Rita Candies.
(d) Buyer agrees that it will hold in complete
confidence all information and any documents obtained as a
result of the investigations described in Sections 1.5(b) and
1.5(c) hereof, and if this Agreement is terminated prior to the
Closing, Buyer agrees that all documents received pursuant to
such investigations shall be promptly returned to Seller.
(e) The Buyer and Seller shall conduct a survey in a
mutually agreed manner of the fuel on board each of the Vessels
when it is delivered to the Buyer. To the extent that fuel on
board a Vessel when it was delivered by the Seller to a
charterer is not used by the charterer and remains on board
when delivered to Buyer, and the Seller provides the Buyer with
the results of the on-charter survey for any such Vessel, the
Buyer agrees to reimburse (at Seller's cost) the Seller for the
cost of any such fuel. The Seller shall provide Buyer with
such other information as the Buyer may reasonably request to
verify the cost of fuel on board each Vessel at the time of
delivery to a charterer that the Seller seeks reimbursement for
under this Section 1.5(e).
1.6 Governmental Filings.
(a) The Buyer and Seller will coordinate with the
other and will use all reasonable efforts to cause to be filed
as promptly as possible with the Department of Justice and the
Federal Trade Commission any pre-merger notifications required
by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and to obtain the early termination or
waiver of the HSR Act waiting period and any related
restriction on consummating the transactions contemplated by
this Agreement.
(b) The Seller will furnish Buyer on a timely basis
such information concerning the Vessels and the operation
thereof as reasonably deemed necessary or appropriate by the
Buyer for inclusion in any report, application or other
statement required by law to be made by Buyer or to be filed by
Buyer with any governmental authority in connection with or
relating to the transactions contemplated by this Agreement.
SECTION 2
CONDITIONS PRECEDENT
2.1 The respective obligations of the Seller to sell the
Vessels to the Buyer and the Buyer to pay the Purchase Price
for the Vessels are subject to the satisfaction of the
following conditions precedent:
(a) Deliveries by the Buyer. At the Closing, Buyer
shall deliver to the Seller $62,000,000 by wire transfer of
immediately available funds to an account designated by the
Seller.
(b) Deliveries by Seller. At the Closing, the
following actions shall have been taken by the Seller with
respect to the Vessels (other than the M/V Rita Candies):
(1) The Seller shall deliver bills of sale
fully executed by the Seller in a mutually acceptable form
pursuant to which the Seller shall transfer to Buyer all right,
title and ownership of the Vessels sold, transferred, conveyed,
assigned and delivered free and clear of all Encumbrances (as
hereinafter defined); and
(2) The Seller shall deliver to the Buyer all
documentation, certificates and instruments relating to each
Vessel as may be in the Seller's possession and such documents,
certificates, maintenance records and such other instruments
reasonably requested by Buyer concerning the accuracy and
validity of or compliance with the representations and
warranties as Buyer may reasonably request.
(c) Protocol of Acceptance and Delivery. The Seller
and Buyer shall each execute and deliver to one another a
certificate evidencing the Buyer's acceptance and the Seller's
delivery of the Vessels (other than the M/V Rita Candies) as of
11:59 p.m. on the Closing Date.
(d) HSR Act. Any waiting period imposed under the
HSR Act shall have expired or been terminated in accordance
with the rules promulgated thereunder.
(e) Representations and Warranties. All
representations and warranties made by Buyer and the Seller
shall be true and correct in all material respects on and as of
the time of the Closing with the same effect as though made on
and as of such date, except to the extent waived in its sole
discretion by the recipient of the representation and warranty.
2.2 Delivery of the M/V Rita Candies. Upon delivery by
the Seller to the Buyer of (i) all documents specified in
Section 2.1(b)(1) and (2) with respect to the M/V Rita Candies
and (ii) such certificates and documentation received by the
Seller upon the completion of the modification, upgrade and
lengthening of the M/V Rita Candies in accordance with the
specifications listed on Schedule "A" hereto with respect to
such Vessel, the Seller will deliver the remaining $7,000,000
of the Purchase Price to the Seller by wire transfer of
immediately available funds to an account designated by the
Seller and Seller shall cause the M/V Rita Candies to be
delivered to the Buyer. The Buyer and Seller shall each
execute and deliver to one another a certificate of the Buyer's
acceptance and the Seller's delivery as of 11:59 p.m. on the
date of the delivery of the M/V Rita Candies in accordance with
this Section 2.2. All representations made by the Buyer and
the Seller herein shall be true and correct in all material
respects on and as of the time of the delivery of the M/V Rita
Candies in accordance with this Section with the same effect as
though made on and as of such date, except to the extent waived
in its sole discretion by the recipient of the representation
and warranty and except to the extent such representation or
warranty pertains to any Vessel other than the M/V Rita
Candies.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller makes the following representations and
warranties to the Buyer:
3.1 Organization, Existence and Corporate Power. The
Seller is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Louisiana and
has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and
the other documents, certificates and instruments contemplated
hereby and thereby. The Seller has not been and is not engaged
in the business of selling tangible personal property similar
to the Vessels and the Seller has not and does not hold itself
out to be engaged in such business.
3.2 Authorization and Execution. The execution, delivery
and performance of this Agreement and the other documents,
certificates and instruments contemplated hereby and thereby
and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by all
requisite corporate action on the part of the Seller. This
Agreement and, when executed and delivered, each other
document, certificate and instrument required to be executed,
has been duly executed and delivered by the Seller constitutes
or will constitute the legal, valid and binding obligations of
the Seller enforceable against it in accordance with the
respective terms hereof and thereof.
3.3 Conflict. Neither the execution, delivery or
performance by the Seller of this Agreement nor the
consummation of the transactions contemplated hereby will
violate or contravene the Seller's articles or certificate of
incorporation or any judgment, decree, order or award of any
court or other governmental agency or any law, rule or
regulation applicable to the Seller or any of its properties or
assets or conflict with, result in a breach of or constitute a
default under, any agreement, instrument or contractual
obligation to which the Seller is a party or by which it or its
properties are bound.
3.4 Title; No Encumbrance. The Seller has good, valid
and marketable title to the Vessels, and all of the Vessels on
the Closing Date shall be, free and clear of all mortgages,
security interests, debts, claims, liens, libels and
encumbrances of any kind whatsoever ("Encumbrances"). The
Seller will warrant and defend the Buyer's title in and to the
Vessels against the claims and demands of all persons
whomsoever. All of the Vessels are U.S. flagged vessels and
are qualified to engage in the coastwide trade and none has
been disqualified from their intended service by the U.S.
Maritime Administration. At all times the Seller has been "a
citizen of the United States" within the meaning of Section 2
of the Shipping Act of 1916, as amended. The Vessels are duly
documented in the name of the Seller with the U.S. Coast Guard
and each of the Vessels has and as of the Closing Date, will
have current certificates of inspection (except for the M/V
Nicki Marie Candies, the M/V Beulah Candies and the M/V Adele
Candies) and documentation in effect with the U.S. Coast Guard
and an American Bureau of Shipping loadline certificate, in
each case free of reportable exceptions or notations of record
and each of the Vessels is currently operating within the U.S.
Gulf of Mexico except for (i) the M/V Adele Candies and the M/V
Beulah Candies, which are operating between points in the Gulf
of Mexico and the Caribbean, and (ii) the M/V Rita Candies,
which is being modified, upgraded and lengthened and is not
currently in operation, but which will have a current
certificate of inspection and such other documentation in
effect with the U.S. Coast Guard and the American Bureau of
Shipping as specified in this Section 3.4 when delivered to the
Buyer pursuant to Section 2.2.
3.5 Litigation. There are no legal actions, suits,
arbitrations, government investigations or other legal or
administrative proceedings, nor any order, decree or judgement
pending, or in effect, or threatened against or relating to the
Vessels or the Seller in connection with or relating to the
transactions contemplated by this Agreement.
3.6 Taxes. The Seller has duly and timely prepared and
filed with the appropriate governmental authorities all
returns, reports, information returns or other documents filed
or required to be filed with such governmental authorities and
has paid any taxes or other amounts due in respect thereof that
if unpaid could result in a claim by any governmental authority
against any of the Vessels or the Buyer.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as
follows:
4.1 Organization, Existence and Corporate Power. The
Buyer is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and
has all requisite corporate power to execute, deliver and
perform its obligations under this Agreement.
4.2 Authorization and Execution. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized and
approved by all requisite corporate action of the Buyer. This
Agreement constitutes the legal, valid and binding obligation
of the Buyer enforceable against it in accordance with its
terms.
4.3 Conflict. Neither the execution, delivery or
performance by the Buyer of this Agreement nor the consummation
of the transactions contemplated hereby will violate the
Buyer's certificate of incorporation or by-laws or any
judgment, decree, order or award of any court or other
governmental agency or any law, rule or regulation applicable
to the Buyer or its property or assets or conflict with, result
in a breach of or constitute a default under, any contractual
obligation of the Buyer.
4.4 Citizenship. The Buyer is a "citizen of the United
States" as such term is defined in Section 2 of the Shipping
Act of 1916, as amended, qualified to engage in the trade in
which each Vessel or the M/V Rita Candies is, or is
contemplated to be, employed.
4.5 Litigation. There are no legal actions, suits,
arbitrations, government investigations or other legal or
administrative proceedings, nor any order, decree or judgment
pending, or in effect, or threatened against or relating to the
Buyer in connection with or relating to the transactions
contemplated by this Agreement.
SECTION 5
TERMINATION
5.1 Termination. (a) This Agreement may, by written
notice given at or prior to the Closing, be terminated: (i)
by mutual consent of the Seller and the Buyer; (ii) by the
Seller or the Buyer if there has been a material breach by the
other of any representation, warranty or covenant contained in
this Agreement that shall not have been cured or waived by the
other party prior to the earlier of ten days following notice
of such breach and the Closing Date; (iii) by the Buyer in
accordance with Section 1.5(b) following the completion of its
due diligence investigation specified therein; or (iv) by the
Seller or the Buyer if the conditions to Closing required by
Section 2.1 shall not have been met or waived by August 31,
1997, or the Closing has not occurred by such date; provided,
however, that the party whose breach of its representations and
warranties in this Agreement or whose failure to perform any of
its covenants and agreements under this Agreement has resulted
in the failure of the Closing to occur on or before such date
shall not be entitled to terminate this Agreement pursuant to
clause (iv) of this Section 5.1(a).
(b) The obligation of the Buyer to pay that portion
of the Purchase Price allocated to the M/V Rita Candies in
accordance with Section 2.2 and the Seller's obligation to
deliver and sell the M/V Rita Candies to the Buyer may be
terminated: (i) by the mutual consent of the Seller and the
Buyer; (ii) by the Seller or the Buyer if there has been a
material breach by the other of any representation, warranty or
covenant contained in this Agreement that shall not have been
cured or waived by the other party prior to the earlier of ten
days following notice of delivery of the M/V Rita Candies in
accordance with Section 2.2; (iii) by the Buyer if the
documents required to be delivered by the Seller by Section 2.2
shall not have delivered or the delivery thereof waived by the
Buyer by September 1, 1997, or the M/V Rita Candies has not
been delivered to the Seller in accordance with Section 2.2 by
such date; provided, however, that the party whose breach of
its representations and warranties in this Agreement or whose
failure to perform any of its covenants and agreements under
this Agreement has resulted in the failure of the delivery and
sale of the M/V Rita Candies on or before September 1, 1997
shall not be entitled to terminate this Agreement pursuant to
clause (iii) of this Section 5.1(b).
5.2 Effect of Termination; Survival. Upon termination of
this Agreement pursuant to Section 5.1(a), this Agreement shall
be void and of no effect and there shall be no liability by
reason of this Agreement or the termination thereof on the part
of any party except for any liability arising out of a breach
of any covenant in this Agreement prior to the date of
termination or any covenant that survives pursuant to this
Section 5.2. The following provisions shall survive any
termination of this Agreement: Sections 1.5(d), 5.2 and Section
6.
SECTION 6
MISCELLANEOUS
6.1 Indemnification of Buyer by Seller. (a) The Seller
hereby agrees to pay and assume liability for, and does hereby
agree to indemnify, protect, save and keep harmless the Buyer,
from and against any and all liabilities, obligations, losses,
damages, penalties, claims (including claims by any employee of
such Seller or any of its servants, crew or agents), actions,
suits and related costs, expenses and disbursements, including
reasonable legal fees and expenses, of whatsoever kind and
nature, imposed on, asserted against or incurred by Buyer
(collectively, "Losses"), in any way relating to or arising out
of or alleged to be attributable to, related to or arising out
of (i) any inaccuracy in any representation or warranty of the
Seller in this Agreement or any breach or nonfulfillment of any
covenant, agreement or other obligation of the Seller, (ii)
Encumbrances arising as a matter of law from events occurring
prior to the Closing Date or, in the case of and with respect
to the M/V Rita Candies, prior to its delivery pursuant to
Section 2.2, or (iii) subject to the general principles set
forth in Section 1.3, any Losses sustained by Buyer arising out
of or related to Seller's ownership or operation of the Vessels
prior to the Closing Date or, in the case of the M/V Rita
Candies, prior to its delivery pursuant to Section 2.2.
(b) The representations and warranties of the Seller
to the Buyer and the obligation of the Seller to indemnify the
Buyer pursuant to Section 6.1(a) shall survive the Closing
until July 31, 2000, except in the case of a breach of, or
claim for indemnification based on the breach of, a
representation or warranty contained in Section 3.4 hereof;
provided that the termination of the Seller's obligation to
indemnify the Buyer contained in this Section 6.1(b) shall not
apply to indemnification for Losses which has been the subject
of a written notice to the Seller prior to July 31, 2000, which
notice will preserve such claim until it is liquidated or
otherwise finally resolved pursuant to the procedures set forth
in Section 6.3 hereof.
6.2 Indemnification of Seller by Buyer. (a) Buyer hereby
agrees to pay and assume liability for, and does hereby agree
to indemnify, protect, save and keep harmless the Seller, from
and against any and all Losses imposed on, asserted against or
incurred by the Seller, in any way relating to or arising out
of or alleged to be attributable to, related to or arising out
of (i) any inaccuracy in any representation or warranty of the
Buyer in this Agreement or any breach or nonfulfillment of any
covenant agreement or other obligation of the Buyer, (ii) any
Losses sustained by Seller arising out of or related to the
Buyer's ownership or operation of the Vessels after the Closing
Date, or in the case of the M/V Rita Candies, after its
delivery pursuant to Section 2.2 or (iii) any and all liability
for bodily injury or property damage resulting from the actions
or in actions of the Buyer, its employees, agents or
representatives (collectively, its "Agents") during any due
diligence investigation conducted by the Buyer or any of its
Agents pursuant to Section 1.5(b) or 1.5(c) hereof.
(b) The representations and warranties of the Buyer
to the Seller and the obligation of the Buyer to indemnify the
Seller pursuant to Section 6.2(a) shall survive the Closing
until July 31, 2000; provided that the termination of the
Buyer's obligation to indemnify the Seller contained in this
Section 6.2(b) shall not apply to indemnification for Losses
which has been the subject of a written notice to the Buyer
prior to July 31, 2000, which notice will preserve such claim
until it is liquidated or otherwise finally resolved pursuant
to the procedures set forth in Section 6.3 hereof.
6.3 Notice and Defense of Third Party Claims. If any
third party demand, claim, action or proceeding shall be
brought or asserted under this Section 6 against an indemnified
party or any successor thereto (the "Indemnified Person") in
respect of which indemnity may be sought under this Section 6
from an indemnifying person or any successor thereto (the
"Indemnifying Person"), the Indemnified Person shall give
prompt written notice thereof to the Indemnifying Person who
shall have the right to assume its defense, including the
hiring of counsel reasonably satisfactory to the Indemnified
Person and the payment of all expenses; except that any delay
or failure to so notify the Indemnifying Person shall relieve
the Indemnifying Person of its obligations under this Section 6
only to the extent, if at all, that it is prejudiced by reason
of such delay or failure. The Indemnified Person shall have
the right to employ separate counsel in any of the foregoing
actions, claims or proceedings and to participate in the
defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Person unless both
the Indemnified Person and the Indemnifying Person are named as
parties and the Indemnified Person shall in good faith
determine that representation by the same counsel is
inappropriate. In the event that the Indemnifying Person,
within ten days after notice of any such action or claim, does
not assume the defense thereof, the Indemnified Personal shall
have the right to undertake the defense, compromise or
settlement of such action, claim or proceeding for the account
of the Indemnifying Person, subject to the right of the
Indemnifying Person to assume the defense of such action, claim
or proceeding with counsel reasonably satisfactory to the
Indemnified Person at any time prior to the settlement,
compromise or final determination thereof. Anything in this
Section 6 to the contrary notwithstanding, the Indemnifying
Person shall not, without the Indemnified Person's prior
consent, settle or compromise any action or claim or consent to
the entry of any judgment with respect to any action, claim or
proceeding for anything other than money damages paid by the
Indemnifying Person. The Indemnifying Person may, without the
Indemnified Person's prior consent, settle or compromise any
such action, claim or proceeding or consent to entry of any
judgment with respect to any such action or claim that requires
solely the payment of money damages by the Indemnifying Person
and that includes as an unconditional term thereof the release
by the claimant or the plaintiff of the Indemnified Person from
all liability in respect of such action, claim or proceeding.
The Indemnifying Party shall promptly reimburse the Indemnified
Party for the amount of any judgment rendered with respect to
any third party demand, claim, action or proceeding and for all
damages incurred by the Indemnified Party in connection with
the defense of such demand, claim, action or proceedings.
6.4 Expenses. The Buyer and the Seller shall each pay
their own out-of-pocket fees and expenses, including, without
limitation, all legal, accounting, advisory or other fees and
expenses, arising in connection with any transactions
contemplated by this Agreement.
6.5 Negotiations. During the period from the date of
this Agreement until the earlier of the Closing or the
termination of this Agreement, Seller shall cease any existing
negotiations and shall cause their respective officers,
employees, representatives and agents, not to take any action
(or permit any other person acting for or on their behalf),
directly or indirectly, to solicit or initiate or encourage
inquiries or proposals from, or participate in discussions or
negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group
(other than the Buyer) concerning the sale of any Vessel.
6.6 Entire Agreement; Amendments and Waivers. This
Agreement constitutes the entire agreement and understanding of
the parties with respect to the subject matter hereof and
hereby supersedes any other prior agreement of the parties with
respect to the matters set forth herein whether written or
oral. No modification, waiver or amendment of this Agreement
shall be effective unless such modification, waiver or
amendment shall be in writing and executed by the parties
hereto.
6.7 Notices. Except as may otherwise be expressly
provided herein, any notice herein required or permitted to be
given shall be in writing or by telex or facsimile transmission
with subsequent written confirmation, and may be personally
served, sent by United States mail or by overnight delivery
service providing for evidence of receipt and shall be deemed
to have been given upon receipt by the party notified. For the
purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this
Section 6.7) shall be as set forth opposite each party's name
on the signature page hereof.
6.8 Severability; Counterparts. In case any provision of
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby. This
Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered
shall be an original, but all of such counterparts shall
together constitute one and the same instrument.
6.9 Governing Law. This agreement shall be construed in
accordance with U.S. maritime law and the substantive laws of
the State of Louisiana.
6.10 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided,
however, that neither Buyer nor the Seller shall be permitted
to assign its rights under this Agreement without the prior
written consent of the other party.
6.11 Publicity. Neither the Buyer, the Seller nor any of
their respective affiliates shall issue any press release or
otherwise make any public announcement or disclosure regarding
this Agreement or the transactions contemplated hereby.
However, the Buyer shall be entitled to make such disclosures
to the extent required by any applicable law or regulation;
provided that the Buyer shall first consult in good faith with
the Seller regarding the necessity and scope of such
disclosure.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
The Buyer's address is: BUYER:
610 Palm Avenue TRICO MARINE ASSETS, INC.
Houma, Louisiana 70364
Telephone: 504-693-7661
Facsimile: 504-693-7662 By: /s/ Thomas E. Fairley
------------------------
Thomas E. Fairley
President
The Seller's address is: SELLER:
P. O. Box 25 OTTO CANDIES, INC.
Des Allemands, Louisiana 70030
Telephone: 504-469-7700
Facsimile: 504-469-7740 By: /s/ Paul Candies
------------------------
Paul Candies
President
SCHEDULE A
Name of Vessel Official Number
M/V Blanche Candies 615324
M/V Lena Candies 597276
M/V Ashley Candies 667650
M/V Agnes Candies 659398
M/V Juanita Candies 693268
M/V Hatty Candies 607942
M/V Kathy Candies 600827
M/V Jeanne Candies 603111
M/V Adele Candies 559292
M/V Beulah Candies 542117
M/V Nicki Marie Candies 517536
M/V Rita Candies 569491
Set forth below are the specifications of each of the vessels
and the various material pieces of machinery or equipment
comprising the vessels. The particulars contained herein are
to the best of the Seller's knowledge correct, but are not
guaranteed.
A-1
M/V BLANCHE CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 615324
Port: Houma, LA
Year Built: 1979
Builder: Halter Marine
Year Redesigned: 1995
Shipyard: Service Marine
Net Tonnage: 188
Gross Tonnage: 276
DIMENSIONS: Length: 205
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 143
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-200 HP
CAPACITIES: Fuel (gals.): 100,000
Pump Rate: 18,000 gal./hr @ 130' hd.
Ballast Water (gals.): 212,143
Pump Rate:
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 3
Capacity: 2,000 cu. ft. per tank
Liquid Mud: 1,485 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 23
State Rooms: 4
Berths: 7
A-2
M/V LENA CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 597276
Port: Houma, LA
Year Built: 1979
Builder: Burton Shipyard
Year Redesigned: 1994
Shipyard: Elmwood Drydock
Net Tonnage: 194
Gross Tonnage: 286
DIMENSIONS: Length: 205
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 143
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 100,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,143
Pump Rate:
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 3
Capacity: 2,000 cu. ft. per tank
Liquid Mud: 1,485 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 17
State Rooms: 4
Berths: 7
A-3
M/V ASHLEY CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 667650
Port: Houma, LA
Year Built: 1983
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 202.00
Gross Tonnage: 297.80
DIMENSIONS: Length: 190
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 75
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 16-645-E2
I.H.P.: 5000
B.H.P.: 4300
S.H.P.: 3900
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 115,500
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,000
Pump Rate: 34,200 gal./hr @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,000 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 30 persons
State Rooms: 5
Berths: 14
A-4
M/V AGNES CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 659398
Port: Houma, LA
Year Built: 1983
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 202.00
Gross Tonnage: 297.80
DIMENSIONS: Length: 190
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 120
Width: 13
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 115,500
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,000
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,000 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 18 Persons
State Rooms: 5
Berths: 14
A-5
M/V JUANITA CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 693268
Port: Houma, LA
Year Built: 1983
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 202.00
Gross Tonnage: 297.80
DIMENSIONS: Length: 190
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 120
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 16-645-E2
I.H.P.: 5000
B.H.P.: 4300
S.H.P.: 3900
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 115,500
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,000
Pump Rate: 34,200 gal/hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,000 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 18 Persons
State Rooms: 5
Berths: 14
A-6
M/V HATTY CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 607942
Port: Houma, LA
Year Built: 1979
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 135
Gross Tonnage: 198.81
DIMENSIONS: Length: 180
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 118
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 100,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,143
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 3
Capacity: 2,000 cu. ft. ea.
Liquid Mud: None
Cargo Capacity (tons): 820
QUARTERS: Certified to Carry: 19 Persons
State Rooms: 4
Berths: 7
A-7
M/V KATHY CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 600827
Port: Houma, LA
Year Built: 1978
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 196
Gross Tonnage: 289
DIMENSIONS: Length: 180
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 118
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 83,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 190,000
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 820
QUARTERS: Certified to Carry: 16 Persons
State Rooms: 4
Berths: 7
A-8
M/V JEANNE CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 603111
Port: Houma, LA
Year Built: 1979
Builder: Burton Shipyard
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 140
Gross Tonnage: 207
DIMENSIONS: Length: 180
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 118
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 83,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 190,000
Pump Rate: 34,200 gal./hr. @ 130 hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 820
QUARTERS: Certified to Carry: 13 Persons
State Rooms: 4
Berths: 7
A-9
M/V ADELE CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 559292
Port: Houma, Louisiana
Year Built: 1974
Builder: Equitable Equipment Co.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 133
Gross Tonnage: 196
DIMENSIONS: Length: 180
(in feet) Beam: 38
Depth: 12
Light Draft: 10
Maximum Draft: 12
Clear Deck Space
Length: 110
Width: 32
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: Bird-Johnson
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 82,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 223,000
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 2,000
Calcium (Bromide-Chloride): 47,000 U.S. Gals.
(not certified)
Drill Mud and Cement Tanks
No.: 2
Capacity: 1,800 cu. ft. ea.
Liquid Mud:
Cargo Capacity (tons): 470
QUARTERS: Certified to Carry: 18 Persons (not certified)
State Rooms: 5
Berths: 17
A-10
M/V BEULAH CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 542117
Port: Houma, Louisiana
Year Built: 1972
Builder: Burton Shipyards
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 134
Gross Tonnage: 197.96
DIMENSIONS: Length: 180
(in feet) Beam: 38
Depth: 15
Light Draft: 10
Maximum Draft: 13
Clear Deck Space
Length: 110
Width: 32
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 14 Kts.
Bow Thruster:
Model:
CAPACITIES: Fuel (gals.): 69,760
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 235,600
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 2,000
Calcium (Bromide-Chloride):
Drill Mud and Cement Tanks
No.:
Capacity:
Liquid Mud:
Cargo Capacity (tons): 470
QUARTERS: Certified to Carry: 28 Persons (not certified)
State Rooms: 9
Berths: 24
A-11
M/V NICKI MARIE CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 517536
Port: Houma, Louisiana
Year Built: 1968
Builder: American Marine
Year Redesigned: 1981
Shipyard: American Shipyard
Net Tonnage: 132.00
Gross Tonnage: 195.00
DIMENSIONS: Length: 166
(in feet) Beam: 38
Depth: 14
Light Draft: 8.5
Maximum Draft: 12
Clear Deck Space
Length: 110
Width: 30
POWERED BY: Main Engines
No.: 2
Mfg.: Detroit Diesel
Model: 16V-92
I.H.P.: 1800
B.H.P.: 1500
S.H.P.: 1200
Speed: 12 Kts.
Bow Thruster:
Model:
CAPACITIES: Fuel (gals.): 52,000
Pump Rate: 450 GPM
Ballast Water (gals.): 168,400
Pump Rate: 450 GPM
Potable Water (gals.): 7,300
Lube Oil: 2,000
Calcium (Bromide-Chloride):
Drill Mud and Cement Tanks
No.:
Capacity:
Liquid Mud:
Cargo Capacity (tons): 575 l.t.
QUARTERS: Certified to Carry: 23 Persons (not certified)
State Rooms: 6
Berths: 23
A-12
M/V RITA CANDIES SPECIFICATIONS
(See attached drawing which is incorporated herein as a part of
this Schedule A)
REGISTRATION: Official No.: 569491
Port: Houma, Louisiana
Year Built: 1975
Builder: Nashville Bridge Co.
Year Redesigned: 1997
Shipyard: Hudson Drydock
Net Tonnage:
Gross Tonnage:
DIMENSIONS: Length: 225
(in feet) Beam: 40
Depth: 18
Light Draft: 11 ft.
Maximum Draft: 15.5 ft.
Clear Deck Space
Length: 140
Width: 32
POWERED BY: Main Engines:
No.: 2
Mfg.: EMD
Model: 16-645-E5
I.H.P.: 7500
B.H.P.: 6300
S.H.P.: 5750
Speed: 14 kt.
Bow Thruster: kamome
Model: 550 hp.
CAPACITIES: Fuel (gals.): 176,772 gals.
Pump Rate: 18,680 gals./hr. @ 130' hd.
Ballast Water (gals.): 117,250
Pump Rate: 34,000 gph @ 130'hd
Potable Water (gals.): 1200
Lube Oil: 6,200
Drill Mud and Cement Tanks
No.: 4
Capacity: 1,500 cu. ft. ea.
Liquid Mud: 3,200 barrels
Cargo Capacity (tons): 425
QUARTERS: Certified to Carry: 25 Persons
State Rooms: 10
Berths: 25
EXHIBIT 10.2
AMENDMENT NO. 5
to that certain
REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 5 (this "Amendment"), dated as of July
16, 1997, is by and among TRICO MARINE OPERATORS, INC. ("Marine
Operators"), TRICO MARINE ASSETS, INC. ("Marine Assets") (each
of Marine Operators and Marine Assets is referred to herein as
a "Borrower" and collectively as the "Borrowers"), TRICO MARINE
SERVICES, INC. (the "Parent"), BANKBOSTON, N.A. (f/k/a The
First National Bank of Boston), HIBERNIA NATIONAL BANK, FIRST
NATIONAL BANK OF COMMERCE and such other lending institutions
as may become parties to the Credit Agreement referred to below
(collectively, the "Banks") and BANKBOSTON, N.A. as agent for
the Banks (the "Agent").
WHEREAS, the Borrowers, the Parent, the Banks and the
Agent are parties to that certain Revolving Credit Agreement,
dated as of July 26, 1996 (as amended, restated, modified or
supplemented and in effect from time to time, the "Credit
Agreement"), pursuant to which the Banks, upon certain terms
and conditions, have agreed to make loans and to otherwise
extend credit to the Borrowers; and
WHEREAS, the Borrowers and the Parent have informed the
Banks and the Agent that (i) they intend to acquire selected
assets of Otto Candies, Inc. (the "Acquisition") and to finance
the Acquisition with the proceeds of the issuance of up to
$110,000,000 in Senior Notes of the Parent (the "Senior Notes")
and (ii) the obligations of the Parent under the Senior Notes
shall be guaranteed by the Borrowers; and
WHEREAS, the Borrowers and the Parent have informed the
Banks and the Agent that HOS Marine Partners, Inc. ("HOS") has
been merged into Marine Assets, with Marine Assets being the
surviving corporation of such merger (the "HOS Merger");
WHEREAS, the Borrowers and the Parent have requested that
the Banks and the Agent agree to amend certain provisions of
the Credit Agreement; and
WHEREAS, the Banks and the Agent have agreed, subject to
the satisfaction of the conditions precedent set forth herein,
to so amend the Credit Agreement;
WHEREAS, capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
NOW, THEREFORE, the Borrowers, the Parent, the Banks and
the Agent hereby agree as follows:
Section 1. Amendments to the Credit Agreement. Subject to the
satisfaction of the conditions precedent set forth in Section 4
hereof, the Credit Agreement is hereby amended as follows:
Section 1.1 Definitions. Section 1.1 of the Credit Agreement is
hereby amended as follows:
(a) by adding the following new definitions thereto in
the correct alphabetical sequence:
Adjustment Date. The first day of the month
immediately following the month in which a Compliance
Certificate is delivered by the Borrowers pursuant to
Section 8.4(c) hereof.
Applicable Margin. (a) With respect to any Base Rate
Loan and any Eurodollar Rate Loan, and for each period
commencing on an Adjustment Date through the date
immediately preceding the next Adjustment Date (each a
"Rate Adjustment Period"), the Applicable Margin shall be
the applicable margin per annum set forth below
corresponding to the ratio of (i) consolidated Funded Debt
of the Parent and its Subsidiaries, determined at the end
of the fiscal quarter of the Parent ending immediately
prior to the applicable Adjustment Date to (ii)
Consolidated EBITDA of the Parent and its Subsidiaries for
the period of four (4) consecutive fiscal quarters of the
Parent ending immediately prior to the applicable
Adjustment Date:
Level Ratio of Base Eurodollar
consolidated Funded Rate Loans Rate Loans
Debt / Consolidated
EBITDA
===== =================== ========== ==========
I greater than or equal 0.50% 1.75%
to 2.5:1.0
II greater than or equal 0.25% 1.50%
to 2.0:1.0 and less
than 2.5:1.0
III greater than or equal 0% 1.25%
to 1.5:1.0 and less than
2.0:1.0
IV greater than or equal 0% 1.0%
to 1.0:1.0 and less than
1.5:1.0
V less than 1.0:1.0 0% .75%
(b) Notwithstanding the foregoing, the Applicable Margin for each Loan
shall not be lower than the Applicable Margin for Level II set forth in the
table above until the Adjustment Date next following the delivery to the Banks
of the financial statements of the Parent and its Subsidiaries (and the
corresponding Compliance Certificate relating thereto) for the fiscal year of
the Borrowers ending on December 31, 1997.
(c) If the Borrowers shall fail to deliver any Compliance Certificate
pursuant to Section 8.4(c) hereof, then, for the period commencing on the date
such Compliance Certificate was due pursuant to Section 8.4(c) through the
Adjustment Date immediately following the date on which such Compliance
Certificate is delivered, the Applicable Margin for each Loan shall be that
corresponding to Level I in the table above.
Consolidated EBITDA. For any period, the consolidated Net Income of the
Parent and its Subsidiaries for such period, after all expenses and other
proper charges, but before payment or provision for any income taxes, interest
expense, depreciation or amortization for such period, determined on a
consolidated basis for such Persons in accordance with generally accepted
accounting principles.
Ineligible Securities. Securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. Section 24, Seventh), as amended.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
Senior Notes. The Senior Notes due 2005 of the Parent, in an aggregate
principal amount not to exceed $110,000,000, guaranteed by the Borrowers and
issued pursuant to such documentation as shall have been previously delivered
to, and approved by, the Agent.
Tangible Asset Amount. With respect to any Person, an amount equal to the
total book value all assets of such Person minus the total book value of all
assets of such Person properly classified as intangible assets under generally
accepted accounting principles.
(b) by deleting the definition of "Maturity Date" set forth therein in its
entirety and substituting in lieu thereof the following new definition:
Maturity Date. July 31, 2003.
(c) by deleting the definition of "Term Out Date" set forth therein in its
entirety and substituting in lieu thereof the following new definition:
Term Out Date. July 31, 1999.
Section 1.2 Interest On Loans. Section 2.5 of the Credit Agreement is
hereby amended by deleting paragraphs (a) and (b) of such Section and replacing
them with, respectively, paragraphs (a) and (b) set forth below:
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the Base
Rate plus the Applicable Margin then applicable to Base Rate Loans. Any change
in the interest rate resulting from a change in the Base Rate is to be
effective at the beginning of the day of such change in the Base Rate. The
Agent will give the Banks and the Borrowers prompt notice in writing of any
change in the Base Rate.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the
Eurodollar Rate plus the Applicable Margin then applicable to Eurodollar Rate
Loans.
Section 1.3 Repayment of the Principal of Term Loan. Section 3A.3 of
the Credit Agreement is hereby amended by deleting the text "December 31, 1998"
occurring in the third line of such Section and substituting in lieu thereof
the text "September 30, 1999".
Section 1.4 Interest on Term Loan. Section 3A.5(a) of the Credit Agreement
is hereby amended by deleting clauses (i) and (ii) of such Section and
replacing them with, respectively, clauses (i) and (ii) set forth below:
(i) To the extent that all or any portion of the Term Loan is a Base Rate
Loan, the Term Loan or such portion shall bear interest during such Interest
Period at the rate per annum equal to the Base Rate plus the Applicable Margin
then applicable to Base Rate Loans. Any change in the interest rate resulting
from a change in the Base Rate is to be effective at the beginning of the day
of such change in the Base Rate. The Agent will give the Banks and the
Borrowers prompt notice in writing of any change in the Base Rate.
(ii) To the extent that all or any portion of the Term Loan is a
Eurodollar Rate Loan, the Term Loan or such portion shall bear interest during
such Interest Period at the rate per annum equal to the Eurodollar Rate plus
the Applicable Margin then applicable to Eurodollar Rate Loans.
Section 1.5 Computations. Section 5.4 of the Credit Agreement is hereby
amended by deleting the first sentence thereof and substituting in lieu thereof
the following: "All computations of interest on Base Rate Loans, Letter of
Credit Fees and of the Commitment Fee shall be based on a 365-day year and
paid for the actual number of days elapsed. All computations of interest on
Eurodollar Rate Loans shall be based on a 360-day year and paid for the actual
number of days elapsed."
Section 1.6 Use of Proceeds. Section 7.17 of the Credit Agreement is
hereby amended by (i) adding the words "; Use of Proceeds" to the caption
of such Section immediately after the words "and X" and (ii) adding the
following new sentence at the end of such Section:
No portion of the proceeds of any Loans is to be used, and no portion of any
Letter of Credit is to be obtained, for the purpose of (a) knowingly
purchasing, or providing credit support for the purchase of, Ineligible
Securities from a Section 20 Subsidiary during any period in which such Section
20 Subsidiary makes a market in such Ineligible Securities, (b) knowingly
purchasing, or providing credit support for the purchase of, during the
underwriting or placement period, any Ineligible Securities being underwritten
or privately placed by a Section 20 Subsidiary, or (c) making, or providing
credit support for the making of, payments of principal or interest on
Ineligible Securities underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of either of the Borrowers or any
Subsidiary or other Affiliate of the Borrowers.
Section 1.7 Compliance Certificate. Section 8.4(c) of the Credit Agreement
is hereby amended by inserting the text "(i) calculating the ratio of
consolidated Funded Debt to Consolidated EBITDA for purposes of determining the
Applicable Margin and (ii)"after the words "in reasonable detail
computations" occurring in the fourth line thereof.
Section 1.8 Additional Vessels. The text of Section 8.14 of the Credit
Agreement is hereby deleted in its entirety and replaced with the phrase
"Intentionally Omitted."
Section 1.9 Restrictions on Indebtedness. Section 9.1 of the Credit
Agreement is hereby amended by (a) substituting the text "120 days" for the
text "90 days" in subsection (g) of such Section, (b) substituting the
amount "$50,000,000" for the amount "$20,000,000" in subsection (g) of such
Section and (c) (i) deleting the period at the end of paragraph (j) of such
Section and substituting in lieu thereof the text "; and" and (ii) inserting
the following new paragraph (k) at the end of such Section:
(k) Indebtedness in respect of the Senior Notes in an aggregate principal
amount not to exceed $110,000,000, and all interest and fees thereunder.
Section 1.10 Investments. Section 9.3(e) of the Credit Agreement is hereby
amended by (i) inserting the text "and such Investment is not otherwise
permitted under Section 9.3(f)" immediately following the words "not a
Borrower" occurring in the third line thereof; (ii) inserting the word "and"
immediately before clause (ii) thereof; and (iii) deleting the text occurring
between the words ", and (iii)" and the words "for Permitted Liens".
Section 1.11 Investments. Section 9.3(f) of the Credit Agreement is hereby
amended by substituting the amount "$20,000,000" for the amount "$10,000,000"
contained therein.
Section 1.12 Distributions. The Credit Agreement is hereby further amended
by deleting Section 9.4 thereof in its entirety and substituting in lieu
thereof the following new Section 9.4:
Section 9.4.Distributions. Neither of the Borrowers nor the Parent
will make any Distributions other than Distributions by the Borrowers
to the Parent in an aggregate amount not to exceed in any one fiscal year
of the Borrowers the greater of (a) the sum of (i) the scheduled
payments of principal and interest under the Senior Notes for such fiscal
year plus (ii) the Borrowers' allocable share of income taxes, franchise
taxes, professional fees and other operating expenses for such year (it
being understood that, with respect to the amount of each Borrower's
allocable share of income taxes, such amount shall not exceed the amount
of income taxes for which such Borrower would have been liable had
the accounts of such Borrower not been consolidated with the accounts
of the Parent) and (b) an amount equal to twenty-five percent (25%) of the
net income of the Borrowers for such fiscal year, provided that no
Distribution (other than Distributions in respect of taxes) shall be
made if, after giving effect to such Distribution or such payment of
principal or interest under the Senior Notes, a Default or Event of
Default shall have occurred and be continuing.
Section 1.13 Merger, Consolidation and Sale of Assets. Section 9.5.1 of
the Credit Agreement is hereby amended by deleting the word "guarantor"
occurring in clause (iii) thereof.
Section 1.14 Merger, Consolidation and Sale of Assets. Section 9.5.2
of the Credit Agreement is hereby amended by restating said Section 9.5.2 in
its entirety as follows:
Section 9.5.2 Disposition of Assets. The Parent and each of the
Borrowers will not, and the Parent will not permit any of its other Subsidiaries
to, become a party to or agree to or effect any disposition of assets, other
than the disposition of assets not constituting Collateral so long as either
(a) the greater of the book value or the sale price of the
assets isposed of in any one or a series of related transactions does not
exceed $5,000,000; or
(b) the greater of the book value or the sale price of the
assets disposed of in any one or a series of related transactions does not
exceed twenty percent (20%) of the consolidated Tangible Asset Amount of the
Parent and the Borrowers, determined at the time of such disposition, and such
Person shall either (i) within one hundred twenty (120) days of such
disposition, apply one hundred percent (100%) of the net proceeds of such asset
disposition to the purchase of similar assets to be used in such Person's
business or (ii) within twenty (20) days of such disposition, apply one
hundred percent (100%) of the net proceeds of such asset disposition to the
repayment of Indebtedness of such Person;
provided, that in connection with any such sale or other disposition the
following conditions have been satisfied:
(i) no Default or Event of Default exists or will occur as a result
of such sale; and
(ii) each such sale is to a third party on an arms length basis for
cash in an amount representing fair and reasonable market value therefor.
Section 1.15 Transactions with Affiliates. Section 9.11 of the Credit
Agreement is hereby amended by (i) deleting the text "(a)" occurring in the
third line thereof and (ii) deleting the text beginning with the words ", or
(b) pay" occurring in the fifth line thereof through the end of such Section
and substituting in lieu thereof a period.
Section 1.16 Funded Debt to Tangible Net Worth. Section 10.2 of the
Credit Agreement is hereby amended by deleting the ratio "1.0 to 1" occurring
in the third line of such Section and substituting in lieu thereof the ratio
"2.0 to 1".
Section 1.17 Assignment and Participation. Section 19.1 of the Credit
Agreement is hereby amended by (i) deleting the text ", in the case of the
Borrowers," occurring in clause (a) of such Section and (ii) deleting the
amount "$3,000,000" occurring in clause (c) of such Section and substituting
in lieu thereof the amount "$5,000,000".
Section 1.18 Confidential Information. The Credit Agreement is hereby
further amended by adding the following new Section 29 thereto in the correct
numerical sequence:
Section 29. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
Section 29.1 Sharing of Information with Section 20 Subsidiary. The
Parent and the Borrowers acknowledge that from time to time financial advisory,
investment banking and other services may be offered or provided to the Parent
and/or the Borrowers or one or more of their Subsidiaries, in connection with
this Credit Agreement or otherwise, by a Section 20 Subsidiary. Each of the
Parent and the Borrowers, for itself and each of its Subsidiaries, hereby
authorizes (a) such Section 20 Subsidiary to share with the Agent and each Bank
any information delivered to such Section 20 Subsidiary by the Parent or the
Borrowers or any of their Subsidiaries, and (b) the Agent and each Bank to
share with such Section 20 Subsidiary any information delivered to the Agent or
such Bank by the Parent or the Borrowers or any of their Subsidiaries pursuant
to this Credit Agreement, or in connection with the decision of such Bank to
enter into this Credit Agreement; it being understood, in each case, that any
such Section 20 Subsidiary receiving such information shall be bound by the
confidentiality provisions of this Credit Agreement. Such authorization shall
survive the payment and satisfaction in full of all of Obligations.
Section 29.2 Confidentiality.
Each of the Banks and the Agent agrees, on behalf of itself and each of its
affiliates, directors, officers, employees and representatives, to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Parent, the Borrowers or any of their Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Banks or the Agent,
provided that nothing herein shall limit the disclosure of any such information
(a) after such information shall have become public other than through a
violation of this Section 29, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of the Banks or the
Agent, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Bank or the Agent, or to auditors or accountants, (e) to
the Agent, any Bank or any Section 20 Subsidiary, (f) in connection with any
litigation to which any one or more of the Banks, the Agent or any Section 20
Subsidiary is a party, or in connection with the enforcement of rights or
remedies hereunder or under any other Loan Document, (g) to a Subsidiary or
affiliate of such Bank as provided in Section 29.1 or (h) to any
assignee or participant (or prospective assignee or participant) so long as
such assignee or participant agrees to be bound by the provisions of Section
19.6 and this Section 29.2.
Section 29.3 Prior Notification. Unless specifically
prohibited by applicable law or court order, each of the Banks
and the Agent shall, prior to disclosure thereof, notify the Parent and the
Borrowers of any request for disclosure of any such non-public information by
any governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Bank by
such governmental agency) or pursuant to legal process.
Section 29.4 Other.
In no event shall any Bank or the Agent be obligated or required to return any
materials furnished to it or any Section 20 Subsidiary by the Parent, the
Borrower or any of their Subsidiaries. The obligations of each Bank under this
Section 29 shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Loans or Reimbursement Obligations
from any Bank.
Section 1.19 Exhibit C. The Credit Agreement is hereby amended by
deleting Exhibit C attached thereto in its entirety and replacing such Exhibit
with Exhibit C attached hereto.
Section 1.20 Schedules. The Credit Agreement is hereby amended by
deleting Schedule 7.24(a), Schedule 7.24(b), Schedule 7.24(c), and Schedule 9.3
thereto in their entirety and replacing such Schedules with, respectively,
Schedule 7.24(a), Schedule 7.24(b), and Schedule 7.24(c), and Schedule 9.3
attached hereto.
Section 2. Representations and Warranties. The Parent and each of the
Borrowers jointly and severally represent and warrant to the Banks and the
Agent as follows:
(a) Representations and Warranties in Credit Agreement.
The representations and warranties of the Parent and the Borrowers
contained in the Credit Agreement, each as amended by this Amendment, (a) were
true and correct in all material respects when made, and (b) except to the
extent such representations and warranties by their terms are made solely
as of a prior date, continue to be true and correct in all material respects
on the date hereof.
(b) Authority, Etc. The execution and delivery by the Borrowers and
the Parent of this Amendment and the performance by the Borrowers and the Parent
of all of their agreements and obligations under this Amendment (i) are
within the corporate authority of each of the Borrowers and the Parent, (ii)
have been duly authorized by all necessary corporate proceedings by each of
the Borrowers and the Parent, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to
which either of the Borrowers or the Parent is subject or any judgment, order,
writ, injunction, license or permit applicable to either of the Borrowers or
the Parent, and (iv) do not conflict with any provision of the corporate
charter or by-laws of, or any agreement or other instrument binding upon,
either of the Borrowers or the Parent.
(c) Enforceability of Obligations. This Amendment, and the
Credit Agreement as amended hereby, constitute the legal, valid and binding
obligations of each of the Borrowers and the Parent enforceable against
each such Person in accordance with their respective terms. Immediately prior
to and after giving effect to this Amendment, no Default or Event of
Default exists under the Credit Agreement or any other Loan Document.
Section 3. Affirmation of Borrowers and the Parent.(a) Each of the
Borrowers hereby affirms its joint and several, absolute and unconditional
promise to pay to each Bank and the Agent the Loans, the Reimbursement
Obligations and all other amounts due under the Notes, the Letters of Credit
and the Credit Agreement as amended hereby, at the times and in the amounts
provided for therein. Each of the Borrowers confirms and agrees that (i) the
obligations of the Borrowers to the Banks and the Agent under the Credit
Agreement as amended hereby are secured by and entitled to the benefits of the
Security Documents and (ii) all references to the term "Credit Agreement"
in the Security Documents shall hereafter refer to the Credit Agreement as
amended hereby.
(b) The Parent, as Guarantor under (and as defined in) the
Parent Guaranty hereby acknowledges that it has read and is aware of the
provisions of this Amendment. The Parent hereby reaffirms its absolute and
unconditional guaranty of the Borrowers' payment and performance of their
obligations to the Banks and the Agent under the Credit Agreement as amended
hereby. The Parent hereby confirms and agrees that all references in the
Parent Guaranty to the term "Credit Agreement" shall hereafter refer to
the Credit Agreement as amended hereby.
Section 4. Conditions to Effectiveness. This Amendment shall be effective
as of the date hereof upon satisfaction of the following conditions precedent:
(a) the Agent shall have received an original counterpart signature
to this Amendment, duly executed and delivered by each of the Borrowers, the
Parent, the Banks and the Agent;
(b) the offering of the Senior Notes shall have been consummated;
(c) the Agent shall be satisfied that (i) no written statement
furnished to the Agent or any Bank by or on behalf of either Borrower or
the Parent in connection with any of the transactions contemplated by this
Amendment contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements contained therein
not misleading in light of the circumstances in which they are made; (ii) the
financial statements delivered to it by the Borrowers and the Parent fairly
present the assets, business and financial condition of the Parent and the
Borrowers; (iii) there shall not exist any litigation or other proceeding,
the result of which might impair or prevent the consummation of this Amendment
or have a material adverse effect on the Parent, the Borrowers or their
Subsidiaries; (iv) there shall not exist any Default or Event of Default or
any default under any other material contract or agreement of the Parent,
the Borrowers or any of their Subsidiaries; and (v) there shall have occurred
no material adverse change in the condition (financial or otherwise),
operations, assets, income or prospects of the Parent, the Borrowers,
or any of their Subsidiaries;
(d) the Borrowers shall have paid all fees required to be paid
pursuant to the Fee Letter, dated as of June 26, 1997, among the Borrowers,
the Parent, the Agent and the Banks;
(e) the Agent shall have received (i) original counterpart
signatures to amendments to each of the Vessel Mortgages duly executed
and delivered by Marine Assets and the Agent and (ii) evidence of the filing
and recordation (in the form of a Certificate of Ownership and Encumbrance
acceptable to the Agent and the Banks) of such amendments with the U.S. Coast
Guard (in the case of the U.S. Vessel Mortgage) or the Office of the Deputy
Commissioner of Maritime Affairs for The Republic of Vanuatu (in the case
of the Vanuatu Vessel Mortgage), such amendments to reflect this Amendment
and the HOS Merger; provided that the requirements of this Section4(e)
may be satisfied by the delivery to the Agent of such amendments and such
evidence of the filing and recordation of such amendments not later than
July 31, 1997;
(f) the Agent shall have received a legal opinion, addressed to the
Banks and the Agent, dated the date hereof, in form and substance satisfactory
to the Banks and the Agent, from Jones, Walker, Waechter, Poitevent, Carrerre
& Denegre, L.L.P., counsel to the Parent, and the Borrowers;
(g) the Agent shall have received evidence satisfactory to the Banks
and the Agent that all requisite corporate approval of the transactions
contemplated hereby has been obtained, including without limitation delivery of
copies, certified by the secretary of each of the Borrowers and the Parent,
of votes of such Person's respective board of directors authorizing the
transactions contemplated hereby,
(h) the Agent shall have received any other document or instrument
the Agent or the Banks may reasonably request; and
(i) all necessary governmental, regulatory and other third party
consents and approvals to the Acquisition and this Amendment shall have been
obtained and the Agent shall have received evidence of the same.
Section 5. Miscellaneous Provisions. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of
the Credit Agreement shall remain the same. It is declared and agreed by each
of the parties hereto that the Credit Agreement, as amended hereby, shall
continue in full force and effect, and that this Amendment and the Credit
Agreement shall be read and construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER
SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account
for more than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) Headings or captions used in this Amendment are for convenience
of reference only and shall not define or limit the provisions hereof.
(e) The Borrowers hereby jointly and severally agree to pay to the Agent,
on demand by the Agent, all reasonable out-of-pocket costs and expenses
incurred or sustained by the Agent in connection with the preparation
of this Amendment (including reasonable legal fees and expenses).
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as an agreement under seal as of the date first written above.
TRICO MARINE OPERATORS, INC.
By: /s/ Victor M. Perez
---------------------------
Name: Victor M. Perez
Title: Vice President
TRICO MARINE ASSETS, INC.
By:/s/ Victor M. Perez
---------------------------
Name: Victor M. Perez
Title: Vice President
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
----------------------------
Name: Victor M. Perez
Title: Vice President
BANKBOSTON, N.A., individually and
as Agent
By: /s/ Victor Garcia
--------------------------
Name: Victor Garcia
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Bruce Ross
---------------------------
Name: Bruce Ross
Title: Vice President
FIRST NATIONAL BANK
OF COMMERCE
By: /s/ J. Charles Friel, Jr.
---------------------------
Name: J. Charles Friel, Jr.
Title Senior Vice President
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
[Date]
To the Banks (as defined in the
Credit Agreement referred to below)
c/o BankBoston, N.A., as Agent
100 Federal Street
Boston, Massachusetts 02110
Attn: Transportation Division
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of July 26,
1996 (as amended and in effect from time to time, the "Credit Agreement"), by
and among Trico Marine Operators, Inc., Trico Marine Assets, Inc.,
(collectively, the "Borrowers"), Trico Marine Services, Inc., BankBoston,
N.A. and the other lending institutions which are or may become parties
thereto from time to time (collectively, the "Banks"), and BankBoston,
N.A. as agent for the Banks (the "Agent"). Capitalized terms used herein
without definition which are defined in the Credit Agreement shall have the
respective meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 8.4(c) of the Agreement, the Borrowers, by the
undersigned officers of the Borrowers (who have reviewed the Loan Documents)
hereby certify to each of you as follows: (a) the information furnished in the
calculations set forth on the Covenant Compliance Worksheet attached hereto as
Annex A was true and correct as of the last day of the fiscal [year] [quarter]
immediately preceding the date of this certificate; (b) as of the date of this
certificate, there exists no Default or Event of Default or condition which
would, with either or both the giving of notice or the lapse of time, result
in a Default or an Event of Default; and (c) the financial statements
delivered herewith were prepared in accordance with generally accepted
accounting principles applied on a basis consistent with prior periods
(except, in the case of quarterly statements, for provisions for footnotes and,
in all cases, except as disclosed therein).
IN WITNESS WHEREOF, each of Trico Marine Operators, Inc. and Trico
Marine Assets, Inc. has executed this Compliance Certificate as of the date
first written above.
TRICO MARINE OPERATORS, INC.
By:_______________________________
Name:
Title:
TRICO MARINE ASSETS, INC.
By:_______________________________
Name:
Title:
Annex A
Covenant Compliance Worksheet
I. Operating Cash Flow to Total Debt Service (calculated on a
consolidated basis) (Section 10.1)
A. Net Income: _________
B. Plus: interest expense: _________
C. Plus: income tax expense: _________
D. Plus: depreciation and amortization: _________
E. Less: Cash taxes (without duplication): _________
F. Less: Capital Expenditures (for maintenance
repair dry-docking, inspection of Capital Assets): _________
G. Operating Cash Flow (A+B+C+D-E-F): _________
H. Total Financial Obligations: _________
I. Plus: Total Interest Expense: _________
J. Plus: Adjusted Revolver Outstandings _________
K. Total Debt Service (H+I+J): _________
Computed Ratio (GK): _________
Minimum ratio allowed: 1.5: 1
Excess (deficiency) in ratio: _________
II. Funded Debt to Tangible Net Worth Ratio (calculated on a consolidated
basis) (Section 10.2)
A. Indebtedness: __________
(other than short-term trade credit)
B. Plus: Deferred purchase price of assets __________
(other than short-term trade credit)
C. Plus: Reimbursement Obligations
(contingent or otherwise)
D. Plus: Capitalized Leases __________
E. Funded Debt (A+B+C+D): __________
F. Total Assets: __________
G. Less: Total Liabilities __________
H. Less: intangible assets __________
I. Less: write-up in book value
subsequent to Closing Date: __________
J. Less: subscriptions receivable __________
K. Tangible Net Worth (F-G-H-I-J) __________
L. Computed ratio (EK) __________
Maximum ratio allowed: 2.0:1
Excess (deficiency) in ratio: __________
III. Minimum Tangible Net Worth (calculated on a consolidated basis) (Section
10.3)
A: Tangible Net Worth: __________
B. $90,000,000 $90,000,000
C. Plus: 50% of positive consolidated Net Income for
each fiscal quarter since the Closing Date: __________
D. Minimum Tangible Net Worth (B+C) __________
Excess (deficiency) in Net Worth (A-D): __________
IV. Collateral Value Ratio (Section 10.4)
A. Appraised value of the Vessels subject to US Vessel
Mortgage and Vanuatu Vessel Mortgage
(at most recent appraisal): ___________
B. Loans Outstanding ___________
C. Maximum Drawing Amount
D. Unpaid Reimbursement Obligations
E. sum of B+C+D
F. Minimum ratio of appraised Vessels to
Outstanding Loans, Maximum Drawing Amount
and Unpaid Reimbursement Obligations 1.4: 1
G. Actual ratio of appraised Vessels to
Outstanding Loans, Maximum Drawing Amount
and Unpaid Reimbursement Obligations (A / E): ___________
Excess (deficiency) in ratio: ___________
V. Consolidated Funded Debt to Consolidated EBITDA (calculated on a
consolidated basis) (Computation of Applicable Margin)
A. Net Income: _________
B. Plus: interest expense: _________
C. Plus: income tax expense: _________
D. Plus: depreciation and amortization: _________
E. total Consolidated EBITDA (A+B+C+D): _________
F. Funded Debt (Item II(e) above) _________
G. Computed ratio (FE) _________
Schedule 7.24(a) - Ownership of Vessels; U.S. Flag Vessels, Vanuatu Flag
Vessels
[To be Provided by Borrowers]
Schedule 7.24(b) - Vessels With Coast Guard Certification
[To be Provided by Borrowers]
Schedule 7.24(c) - Classed Vessels
[To be Provided by Borrowers]
Schedule 9.3 - Investments
[To be Provided by Borrowers]
EXHIBIT 10.3
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
$110,000,000
8 1/2% Series A Senior Notes due 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of July 21, 1997
BEAR, STEARNS & CO. INC.
JEFFERIES & COMPANY, INC.
BANCBOSTON SECURITIES INC.
This Registration Rights Agreement (this "Agreement") is
made and entered into as of July 21, 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 Bear, Stearns & Co. Inc., Jefferies &
Company, Inc. and BancBoston Securities Inc. (the "Initial
Purchasers"), who have agreed to purchase $110,000,000
aggregate principal amount of the Company's 8 1/2% Series A Senior
Notes due 2005 (the "Series A Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated July 16, 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 A
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 A 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 B 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 B Notes in the same aggregate
principal amount as the aggregate principal amount of
Series A Notes that were tendered by Holders thereof
pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A
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 B 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 B 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 A 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 July 16, 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 A Notes and the Series B 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 B
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 B Notes: The Company's 8 1/2% Series B Senior
Notes due 2005 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 A Note
until (i) the date on which such Series A Note has been
exchanged by a person other than a Broker-Dealer for a
Series B Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a
Series A Note for a Series B Note, the date on which such
Series B 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 A 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 A 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 B
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 B Notes and the Subsidiary Guarantees to be made
under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange Offer, 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 B Notes to be offered in exchange
for the Transfer Restricted Securities and to permit resales of
the Series B 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 B 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 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 contained in 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 A 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 B 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 B 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
120th 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 of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any of
such Registration Statements 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 payment date for liquidated
damages, as provided in the Indenture. 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 an Exchange Offer
for such Series A 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 such an 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 B Notes obtained by such Holder in exchange for
Series A 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 B
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 B Notes in its ordinary course of business and
has no arrangement or understanding with any Person to
participate in the distribution of the Series B 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 such Persons, 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), and make such customary
representations and warranties, 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 whether or
not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration,
the Company and the Guarantors shall:
(A) Except in the case of an Underwritten
Registration, 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 an
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
such Persons, 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
A Notes covered by the Shelf Registration Statement,
Series B Notes, having an aggregate principal amount equal
to the aggregate principal amount of Series A Notes being
sold by such Holder; such Series B Notes to be registered
in the name of the purchaser(s) of such Notes, as the case
may be; in return, the Series A 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 an 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 which 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 A 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 B 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 which 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 which 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 which 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 which 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 which 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 which 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 which 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 any 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 or registered.
(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.
Place St. Charles
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.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
Trico Marine Services, Inc.
By /s/ Thomas E. Fairley
-------------------------
Name: Thomas E. Fairley
Title: Chief Executive Officer
and President
Trico Marine Assets, Inc.
By /s/ Thomas E. Fairley
--------------------------
Name: Thomas E. Fairley
Title: Chairman of the Board,
Chief Executive Officer
and President
Trico Marine Operators, Inc.
By /s/ Thomas E. Fairley
-----------------------------
Name: Thomas E. Fairley
Title: Chairman of the Board,
Chief Executive Officer
and President
Accepted and agreed to as of
the date first above written:
Bear, Stearns & Co. Inc.
By /s/ Philip Berney
--------------------------
Name: Philip Berney
Senior Managing Director
Jefferies & Company, Inc.
By /s/ Jeffrey J. Hewitt
--------------------------
Name: Jeffrey J. Hewitt
Senior Managing Director
BancBoston Securities Inc.
By /s/ Neal J. Reiner
-------------------------
Name: Neal J. Reiner
Senior Managing Director
