As filed with the Securities and Exchange Commission on January 9, 1987.
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRICO MARINE SERVICES, INC.
(AND ITS SUBSIDIARIES IDENTIFIED IN FOOTNOTE (1) BELOW)
(Exact name of registrant as specified in its charter)
Delaware 4424 72-1252405
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction ofincorporation Classification Code) Identification No.)
250 North American Court
Houma, Louisiana 70363
(504) 851-3833
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Victor M. Perez
Vice President and Chief Financial Officer
Trico Marine Services, Inc.
2401 Fountainview Drive, Suite 920
Houston, Texas 77057
(713) 780-9926
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
William B. Masters, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170
Fax: 504-582-8012
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. *
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum Amount of
Title of each class of Amount to be offering aggregate registration
securities to be registered registered price offering fee
per unit price(2)
8 1/2% Senior Notes Due 2005, $100,000,000 100% $100,000,000 $29,500
Series D
Senior Guarantees (3) -- -- -- --
(1) Trico Marine Assets, Inc., a Delaware corporation (I.R.S.
Employer Identification Number 72-1252404), and Trico Marine
Operators, Inc, a Louisiana corporation (I.R.S. Employer
Identification Number 72-1096124), each a wholly owned
subsidiary of the Company, will each be a guarantor of the
8 1/2% Senior Notes due 2005, Series D (collectively, the
"Guarantors").
(2) Estimated solely for the purpose of calculating the
registration fee.
(3) The 8 1/2% Senior Notes due 2005, Series D are to be guaranteed
by the Guarantors on a senior basis. No separate
consideration will be paid in respect of the guarantees.
The registrants hereby amend this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrants shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
PROSPECTUS Subject to completion, Dated January 9, 1987
Offer for all Outstanding
8 1/2% Senior Notes Due 2005, Series C
in Exchange for
8 1/2% Senior Notes Due 2005, Series D
of
Trico Marine Services, Inc.
Trico Marine Services, Inc., a Delaware corporation (the "Company" or
"Trico"), and the Guarantors (as defined herein) hereby offer, upon the terms
and subject to the conditions set forth in this Prospectus and the
accompanying letter of transmittal (the "Letter of Transmittal," and together
with this Prospectus, the "Exchange Offer"), to exchange $1,000 principal
amount of registered 8 1/2% Senior Notes Due 2005, Series D of the Company (the
"New Notes") for each $1,000 principal amount of unregistered 8 1/2% Senior
Notes Due 2005, Series C of the Company (the "Old Notes"), of which an
aggregate principal amount of $100,000,000 is outstanding. The form and terms
of the New Notes are identical in all material respects to the form and terms
of the Old Notes except that (i) the New Notes are being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and, therefore,
will not bear any legends restricting their transfer and (ii) holders of the
New Notes, other than certain broker-dealers, will not be entitled to the
rights of holders of Transfer Restricted Securities (as defined herein) under
the Registration Rights Agreement (as defined herein). The New Notes will
evidence the same debt as the Old Notes and will be issued pursuant to, and
entitled to the benefits of, the Indenture (as defined herein) governing the
Old Notes. The New Notes and the Old Notes are sometimes collectively
referred to herein as the "Notes." See "The Exchange Offer" and "Description
of the Notes."
Interest on the New Notes will be payable semi-annually in arrears on
February 1 and August 1 of each year, commencing February 1, 1998. Interest
on the New Notes will accrue from the date of issuance of the Old Notes,
November 14, 1997. The New Notes will mature on August 1, 2005. The New
Notes will be redeemable at the option of the Company, in whole or in part, at
any time on or after August 1, 2001, at the redemption prices set forth
herein, plus accrued and unpaid interest and Liquidated Damages (as defined
herein), if any, thereon, to the redemption date. Notwithstanding the
foregoing, on or prior to August 1, 2001, the Company may redeem the New Notes
at its option, in whole or in part, at the Make-Whole Price (as defined
herein), plus accrued and unpaid interest and Liquidated Damages, if any,
thereon, to the redemption date. In addition, on or prior to July 17, 2000,
the Company may redeem up to 35% of the aggregate principal amount of New
Notes 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 (as defined herein), provided that at least $65.0 million aggregate
principal amount of New Notes remains outstanding following each such
redemption. Upon the occurrence of a Change of Control (as defined herein),
the Company will be required to make an offer to repurchase all or any part of
each holder's New Notes at a price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon, to the date of repurchase. See "Description of the Notes."
The New Notes will be general unsecured obligations of the Company,
ranking pari passu in right of payment with all other future senior
indebtedness of the Company, senior in right of payment to any subordinated
indebtedness incurred by the Company in the future and on a parity with the
Company's outstanding Series A and B Notes (as defined herein) and the Series
E Notes (as defined herein). The New Notes will be effectively subordinated,
however, to all future secured obligations of the Company and to all current
and future secured obligations of the subsidiaries of the Company, to the
extent of the assets securing such obligations. As of September 30, 1997, the
Company had $114.0 million in outstanding Indebtedness, which included (i)
$4.0 million of indebtedness under the Bank Credit Facility (as defined
herein) and (ii) $110.0 million in outstanding Series A and B Notes. On a pro
forma basis after giving effect to the issuance of the Old Notes (the
"Original Offering"), the Acquisition (as defined herein), the Common Stock
Offering (as defined herein) and the Series E Offering (as defined herein), at
September 30, 1997, the Company would have had $390.5 million in outstanding
Indebtedness, $110.5 million of which would have been secured. The Indenture
will permit the Company and its subsidiaries to incur additional indebtedness,
including additional secured indebtedness, under certain conditions. See
"Risk Factors -- Ranking of the Notes; Effective Subordination" and
"Description of the Notes -- Certain Covenants -- Incurrence of Indebtedness
and Issuance of Preferred Stock." The New Notes will be jointly and severally
guaranteed by the Company's present principal operating subsidiaries and
future Significant Subsidiaries (as defined herein).
See "Risk Factors" beginning on page 7 for a discussion of
certain factors that should be considered in connection with the
Exchange Offer and an investment in the New Notes offered hereby.
This Prospectus is dated _______, 1998.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURI-
TIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESEN-
TATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company and the Guarantors will accept for exchange any and all Old
Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City
time, on _____, 1998, unless extended (as so extended, the "Expiration
Date"). Tenders of Old Notes may be withdrawn at any time prior to 5:00 p.m.
New York City time on the Expiration Date. The Exchange Offer is not
conditioned upon any minimum principal amount of Old Notes being tendered for
exchange; however, the Exchange Offer is subject to certain customary
conditions. Old Notes may be tendered only in denominations of $1,000
principal amount and integral multiples thereof. See "The Exchange Offer."
The Old Notes were sold by the Company on November 14, , 1997 to
Jefferies & Company, Inc., Bear, Stearns & Co. Inc. and BancBoston Securities
Inc. (collectively, the "Initial Purchasers") in a private transaction not
subject to the registration requirements of the Securities Act. The Old Notes
were thereupon offered and sold by the Initial Purchasers only to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act) and
to a limited number of institutional "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act), each of whom agreed
to comply with certain transfer restrictions and other conditions.
Accordingly, the Old Notes may not be offered, resold or otherwise transferred
unless registered under the Securities Act or unless an applicable exemption
from the registration requirements of the Securities Act is available. The
New Notes are being offered hereunder in order to satisfy the obligations of
the Company and the Guarantors under the Registration Rights Agreement entered
into with the Initial Purchasers in connection with the offering of the Old
Notes. See "The Exchange Offer" and "Description of the Notes -- Registration
Rights; Liquidated Damages."
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission") set forth in no-action letters issued to third
parties, the Company and the Guarantors believe the New Notes issued pursuant
to the Exchange Offer in exchange for Old Notes may be offered for resale,
resold and otherwise transferred by any holder thereof (other than broker-
dealers, as set forth below, and any such holder that is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that (i) the New Notes are acquired in the ordinary
course of such holder's business, (ii) the holder is not engaging in and does
not intend to engage in a distribution of the New Notes, and (iii) the holder
does not have an arrangement or understanding with any person to participate
in the distribution of the New Notes. Any holder who tenders in the Exchange
Offer with the intention to participate, or for the purpose of participating,
in a distribution of the New Notes or who is an affiliate of the Company may
not rely upon such interpretations by the staff of the Commission and, in the
absence of an exemption therefrom, must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
secondary resale transaction. Holders of Old Notes wishing to accept the
Exchange Offer must represent to the Company in the Letter of Transmittal that
such conditions have been met. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of New
Notes received in exchange for Old Notes where such Old Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company and the Guarantors have agreed, for a period of one
year after the effective date of the Registration Statement of which this
Prospectus forms a part, to make this Prospectus available to any broker-
dealer for use in connection with any such resale.
The Old Notes are eligible for trading in The PORTAL Market. The
Company does not intend to list the New Notes on any securities exchange.
Neither the Company nor the Guarantors will receive any proceeds from
the Exchange Offer.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations thereunder, and in accordance therewith files periodic
reports, proxy and other information statements with the Commission. All
reports, proxy and information statements, and other information filed by the
Company with the Commission may be inspected at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the regional offices of the Commission located at 7 World
Trade Center, 13th Floor, New York, New York 10048, and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
also maintains a Web site (http://www.sec.gov) that contains reports, proxy
and information statements regarding registrants, such as the Company, that
file electronically with the Commission. The Company's Common Stock is traded
on the Nasdaq National Market and reports, proxy statements and other
information concerning the Company can also be inspected at the offices of the
National Association of Securities Dealers, Inc. at 1735 K Street, N.W.,
Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, (ii) Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997 and (iii) Current
Reports on Form 8-K dated February 15, 1997, August 1, 1997, November 14, 1997
and December 2, 1997 (as amended by the Company's Form 8-K/A dated December 2,
1997) which have been filed by the Company with the Commission pursuant to the
Exchange Act, are by this reference incorporated in and made a part of this
Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the Exchange Offer shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any and all of the documents which have been or may be
incorporated by reference in this Prospectus, except that exhibits to such
documents will not be provided unless they are specifically incorporated by
reference into such documents. Requests for copies of any such document
should be directed to Trico Marine Services, Inc., Attention: Corporate
Secretary, 2401 Fountainview, Suite 920, Houston, Texas 77057 (telephone:
(713) 780-9926).
- i -
SUMMARY
The following is a summary of certain information contained elsewhere in
this Prospectus or incorporated by reference herein and does not purport to be
complete. Reference is made to, and this Summary is qualified in its entirety
by and should be read in conjunction with, the more detailed information
contained elsewhere herein or incorporated by reference in this Prospectus.
Unless otherwise defined herein, capitalized terms used in this Summary have
the respective meanings ascribed to them elsewhere in this Prospectus or in
the Indenture (as defined herein).
The Company
Trico is a leading provider of marine support vessels and related
services to the oil and gas industry in the U.S. Gulf of Mexico (the "Gulf")
and offshore Brazil. The Company is the second largest owner and operator of
supply boats in the Gulf and has a total fleet of 82 vessels, including 53
supply boats, 14 crew boats, six lift boats and nine line handling boats. The
services provided by Trico's diversified fleet include transportation of
drilling materials, supplies and crews to offshore exploration and production
facilities and support for the construction, installation, maintenance and
removal of those facilities. Trico has focused on providing high quality,
responsive service while maintaining a low cost structure. The Company
believes the quality of its fleet and the strength of its experienced
management team have allowed the Company to develop and maintain long-term
customer relationships.
The Company has pursued an aggressive strategy of growth through
selected acquisitions which, together with increased day rates from its
existing vessels, has enabled the Company to significantly increase total
revenues and achieve strong operating results. Since its initial public
offering in May 1996, Trico has completed the acquisition of 37 supply boats
at an aggregate cost of $171.5 million. The Company believes that the
increased size of its vessel fleet will enable it to take further advantage of
the strong worldwide demand for marine support vessels and the resulting high
utilization levels and increased vessel day rates. The Company's average
supply boat day rate increased to approximately $7,590 during the third
quarter of 1997 from $5,018 during the comparable period in 1996.
The Original Offering and Use of Proceeds
On December 1, 1997, Trico acquired approximately 99% of the outstanding
shares of Saevik Supply ASA, a publicly-traded Norwegian company ("Saevik
Supply"), for approximately $287.5 million in cash (the "Acquisition"). The
shares were acquired pursuant to a public bid made by Trico in accordance with
the rules of the Oslo Stock Exchange. Saevik Supply is a leading provider of
marine support and transportation services to companies engaged in offshore
exploration and production of oil and gas in the North Sea and operates the
third largest fleet of platform supply vessels ("PSVs") in the North Sea.
Saevik Supply's current fleet consists of six large anchor handling, towing and
supply vessels ("AHTSs") and ten owned and one managed PSVs. During the nine
months ended September 30, 1997, Saevik Supply reported total revenues of NOK
431.9 ($60.6 million) and net income of NOK 193.0 ($27.1) million.
The Old Notes were sold by the Company on November 14, 1997 to the
Initial Purchasers and were thereupon offered and sold by the Initial
Purchasers only to certain qualified buyers. The Company used the net
proceeds of the Original Offering (approximately $98.7 million) to fund a
portion of the Acquisition. The remaining portion of the purchase price was
funded by (i) $68.5 million in borrowings under the Company's revolving credit
facility (the "Revolving Credit Facility"), which was amended in connection
with the Acquisition to provide a revolving line of credit of up to $150.0
million, and (ii) $125.0 million in term loans (the "Term Loans," and together
with the Revolving Credit Facility, the "Bank Credit Facility"). On December
12, 1997, the Company completed a public offering of 4.6 million shares of its
common stock (the "Common Stock Offering"). The Company used the net proceeds
of the Common Stock Offering, approximately $123.0 million, together with
other available funds, to repay the outstanding Term Loans. In December, the
Company also completed the private placement (the "Series E Offering") of an
additional $70.0 million principal amount of its 8 1/2% Senior Notes due 2005,
Series E (the "Series E Notes"), the net proceeds of which were used to repay
amounts outstanding under the Revolving Credit Facility.
The Exchange Offer
The Exchange Offer relates to the exchange of up to $100 million
aggregate principal amount of New Notes for up to $100 million aggregate
principal amount of the Old Notes. The form and terms of the New Notes are
identical in all material respects to the form and terms of the Old Notes
except that (i) the New Notes are being registered under the Securities Act
and, therefore, will not bear any legends restricting their transfer and (ii)
holders of the New Notes, other than certain broker-dealers, will not be
entitled to the rights of holders of Transfer Restricted Securities under the
Registration Rights Agreement. The New Notes will evidence the same debt as
the Old Notes and will be issued pursuant to, and entitled to the benefits of,
the Indenture. The Old Notes and the New Notes are sometimes referred to
collectively herein as the "Notes." See "Description of the Notes."
The Exchange Offer Pursuant to the Exchange Offer, $1,000 principal amount of
New Notes will be issued in exchange for each $1,000
principal amount of Old Notes that are validly tendered
and not withdrawn. As of the date hereof, Old Notes
representing $100 million aggregate principal amount are
outstanding. The terms of the New Notes and the Old Notes
are substantially identical.
Resales Based on interpretations by the staff of the Commission
set forth in no-action letters issued to third parties
unrelated to the Company and the Guarantors, the Company
and the Guarantors believe that the New Notes issued
pursuant to the Exchange Offer in exchange for Old Notes
may be offered for resale, resold and otherwise
transferred by any holder thereof (other than broker-
dealers, as set forth below, and any such holder or such
other person that is an "affiliate" of the Company within
the meaning of Rule 405 under the Securities Act), without
compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that (i) the
New Notes are acquired in the ordinary course of such
holder's business, (ii) such holder is not engaging in and
does not intend to engage in a distribution of the New
Notes, and (iii) such holder does not have an arrangement
or understanding with any person to participate in the
distribution of the New Notes. Any holder who tenders in
the Exchange Offer with the intention to participate, or
for the purpose of participating, in a distribution of the
New Notes or who is an affiliate of the Company may not
rely upon such interpretations by the staff of the
Commission and, in the absence of an exemption therefrom,
must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any
secondary resale transaction. Failure to comply with such
requirements in such instance may result in such holder
incurring liabilities under the Securities Act for which
the holder is not indemnified by the Company. Each
broker-dealer that receives New Notes for its own account
in exchange for Old Notes, where those Old Notes were
acquired by the broker-dealer as a result of its market-
making activities or other trading activities, must
acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. The Letter
of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. The Company has agreed
that, for a period of one year after the effective date of
the Registration Statement of which this Prospectus is a
part, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale.
The Exchange Offer is not being made to, nor will the
Company accept surrenders for exchange from, holders of
Old Notes in any jurisdiction in which this Exchange Offer
or the acceptance thereof would not be in compliance with
the securities or blue sky laws of such jurisdiction.
Expiration Date The Exchange Offer will expire at 5:00 p.m., New York City
time, on ____, 1998, unless extended, in which case, the
term "Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended. See "The
Exchange Offer -- Terms of the Exchange Offer --
Expiration Date; Extension; Amendments."
Conditions to the
Exchange Offer The Exchange Offer is subject to certain customary
conditions, certain of which may be waived by the Company.
See "The Exchange Offer -- Terms of the Exchange Offer --
Conditions to the Exchange Offer." The Exchange Offer is
not conditioned upon any minimum principal amount of Old
Notes being tendered.
Procedures for Tendering
Old Notes Each holder of Old Notes wishing to accept the Exchange
Offer must complete, sign and date the Letter of
Transmittal, or a facsimile thereof, in accordance with
the instructions contained herein and therein, and mail or
otherwise deliver the Letter of Transmittal, or a
facsimile, together with the Old Notes and any other
required documentation, to the Exchange Agent (as defined
herein) at the address set forth herein and in the Letter
of Transmittal. Persons holding Old Notes through the
Depository Trust Company ("DTC") and wishing to accept the
Exchange Offer must do so pursuant to DTC's Automated
Tender Offer Program, by which each tendering Participant
will agree to be bound by the Letter of Transmittal. By
executing or agreeing to be bound by the Letter of
Transmittal, each holder will represent to the Company
that, among other things, (i) the New Notes acquired
pursuant to the Exchange Offer are being acquired in the
ordinary course of such holder's business, (ii) such
holder is not engaging and does not intend to engage in a
distribution of such New Notes, (iii) such holder does not
have an arrangement or understanding with any person to
participate in the distribution of such New Notes, and
(iv) such holder is not an "affiliate," as defined under
Rule 405 promulgated under the Securities Act, of the
Company.
Special Procedures for
Beneficial Owners Any beneficial owner whose Old Notes are registered in the
name of a broker, dealer, commercial bank, trust company
or other nominee and who wishes to tender such Old Notes
in the Exchange Offer should contact such registered
holder promptly and instruct such registered holder to
tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on its own behalf, such
owner must, prior to completing and executing the Letter
of Transmittal and delivering its Old Notes, either make
appropriate arrangements to register ownership of the Old
Notes in such owner's name or obtain a properly completed
bond power from the registered holder. The transfer of
registered ownership may take considerable time and may
not be able to be completed prior to the Expiration Date.
See "The Exchange Offer -- Terms of the Exchange Offer --
Procedures for Tendering Old Notes."
Guaranteed Delivery
Procedures Holders of Old Notes who wish to tender their Old Notes
and whose Old Notes are not immediately available or who
cannot deliver their Old Notes, the Letter of Transmittal
or any other documents required by the Letter of
Transmittal to the Exchange Agent prior to the Expiration
Date, must tender their Old Notes according to the
guaranteed delivery procedures set forth in "The Exchange
Offer -- Terms of the Exchange Offer -- Guaranteed
Delivery Procedures."
Withdrawal The tender of Old Notes pursuant to the Exchange Offer may
be withdrawn at any time prior to 5:00 p.m., New York City
time, on the Expiration Date. Any Old Notes not accepted
for exchange for any reason will be returned without
expense to the tendering holder thereof as promptly as
practicable after the expiration or termination of the
Exchange Offer. See "The Exchange Offer -- Terms of the
Exchange Offer -- Withdrawal Rights."
Acceptance of Old Notes
and Delivery of
New Notes Subject to certain conditions (as described more fully in
"The Exchange Offer -- Terms of the Exchange Offer --
Conditions to the Exchange Offer"), the Company will
accept for exchange any and all Old Notes which are
properly tendered in the Exchange Offer prior to 5:00
p.m., New York City time, on the Expiration Date. The New
Notes issued pursuant to the Exchange Offer will be
delivered promptly following the Expiration Date. See
"The Exchange Offer -- Terms of the Exchange Offer."
Interest on the New Notes
and the Old Notes Interest on each New Note will accrue from the date of
issuance of the Old Note for which the New Note is
exchanged.
Exchange Agent Texas Commerce Bank National Association is serving as
Exchange Agent in connection with the Exchange Offer. The
address, telephone number and facsimile number of the
Exchange Agent are set forth in "The Exchange Offer --
Exchange Agent."
Effect of Not TenderingOld Notes that are not tendered or that are tendered
but not accepted will, following the completion of the
Exchange Offer, continue to be subject to the existing
restrictions upon transfer thereof. The Company will have
no further obligation (other than as described in
"Description of the Notes -- Registration Rights;
Liquidated Damages" with respect to the Shelf Registration
Statement (as defined herein)) to provide for the
registration under the Securities Act of such Old Notes.
Terms of New Notes
Securities Offered $100.0 million aggregate principal amount of 8 1/2% Senior
Notes due 2005, Series D.
Maturity August 1, 2005
Interest Payment DatesInterest on the New Notes will be payable semi-annually
in arrears on February 1 and August 1 of each year,
commencing February 1, 1998.
Ranking The New Notes will be general unsecured obligations of the
Company, ranking pari passu in right of payment with all
other present or future senior indebtedness of the
Company, senior in right of payment to all present or
future subordinated indebtedness of the Company and on a
parity with the Company's outstanding 8 1/2% Senior Notes
due 2005, Series A and Series B (the "Series A and B Notes")
and the Company's outstanding Series E Notes. The New
Notes will be effectively subordinated, however, to all
secured obligations of the Company and its subsidiaries,
including borrowings under the Bank Credit Facility, to
the extent of the assets securing such obligations. On a
pro forma basis giving effect to the Original Offering,
the Acquisition, the Common Stock Offering and the Series
E Offering, at September 30, 1997, the Company would have
had $390.5 million outstanding Indebtedness, $110.5
million of which would have been secured. The Indenture
permits the Company and its subsidiaries to incur
additional indebtedness, including additional secured
indebtedness, subject to certain conditions.
Guarantees The New Notes will be jointly and severally guaranteed on
a senior unsecured basis by the Company's principal
operating subsidiaries and future Significant
Subsidiaries. See "Description of the Notes -- Subsidiary
Guarantees."
Optional Redemption The New Notes will be redeemable at the option of the
Company, in whole or in part, at any time on or after
August 1, 2001, at redemption prices set forth herein,
plus accrued and unpaid interest and Liquidated Damages,
if any, thereon, to the redemption date. Notwithstanding
the foregoing, on or prior to August 1, 2001, the Company
may redeem the New Notes at its option, in whole or in
part, at the Make-Whole Price (as defined herein), plus
accrued and unpaid interest and Liquidated Damages, if
any, thereon, to the redemption date. In addition, on or
prior to July 17, 2000, the Company may redeem up to 35%
of the aggregate principal amount of the New 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 at least $65.0 million
aggregate principal amount of New Notes remains
outstanding following each such redemption. See
"Description of the Notes -- Optional Redemption."
Change of Control Upon the occurrence of a Change of Control, the Company
will be required to make an offer to repurchase all or any
part of each holder's New Notes at a price equal to 101%
of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon, to the
date of repurchase. See "Risk Factors -- Potential
Inability to Fund a Change of Control" and "Description of
the Notes -- Repurchase at the Option of Holders -- Change
of Control."
Certain Covenants The indenture pursuant to which the New Notes will be
issued (the "Indenture") contains certain covenants that,
among other things, limits the ability of the Company and
its subsidiaries to incur additional Indebtedness (as
defined herein), pay dividends or make other
distributions, repurchase Equity Interests (as defined
herein) or subordinated indebtedness, create certain
liens, enter into certain transactions with affiliates,
issue or sell capital stock of subsidiaries, engage in
sale-and-leaseback transactions, sell assets or enter into
certain mergers or consolidations. See "Description of
the Notes -- Certain Covenants."
Exchange Offer;
Registration Rights Pursuant to a registration rights agreement by and between
the Company, the Guarantors and the Initial Purchasers
(the "Registration Rights Agreement"), the Company and the
Guarantors have agreed to file the Registration Statement
of which this Prospectus forms a part (the "Exchange Offer
Registration Statement") with the Commission under the
Securities Act with respect to the Exchange Offer. If (a)
the Company and the Guarantors are not permitted to
consummate the Exchange Offer because the Exchange Offer
is not permitted by applicable law or Commission policy or
(b) any holder of Transfer Restricted Securities notifies
the Company prior to the 20th day following consummation
of the Exchange Offer that (i) it is prohibited by law or
Commission policy from participating in the Exchange Offer
or (ii) that it may not resell the New Notes acquired by
it in the Exchange Offer to the public without delivering
a prospectus and the prospectus contained in the Exchange
Registration Statement would not be available for such
resales, the Company will file with the Commission a shelf
registration statement (the "Shelf Registration
Statement") to cover resales of the Notes by holders
thereof who satisfy certain conditions relating to the
provision of information in connection with the Shelf
Registration Statement. If the Company fails to satisfy
these registration obligations, it will be required to pay
liquidated damages to the holders of the Old Notes under
certain circumstances ("Liquidated Damages"). See
"Description of the Notes -- Registration Rights;
Liquidated Damages."
For further information regarding the Notes, see "Description of the Notes."
USE OF PROCEEDS
The Company will not receive any proceeds from the issuance of the New
Notes pursuant to this Prospectus.
RISK FACTORS
For a discussion of certain factors that should be considered in
connection with the Exchange Offer and an investment in the New Notes offered
hereby, see "Risk Factors."
- 1 -
RISK FACTORS
In addition to the other information set forth elsewhere in this
Prospectus or incorporated by reference herein, the following factors relating
to the Company and this Exchange Offer should be considered by prospective
investors when evaluating an investment in the New Notes offered hereby.
Substantial Indebtedness
At September 30, 1997, on the pro forma basis, after giving effect to
the Original Offering, the Acquisition, the Common Stock Offering and the
Series E Offering, the Company would have had $390.5 million of Indebtedness,
$110.5 million of which would have been secured and stockholders' equity of
$251.8 million. The Company has significant outstanding Indebtedness and is
permitted under the terms of the Notes to incur certain other indebtedness.
The Company's level of indebtedness has several important effects on its
future operations, including (i) the Company's ability to obtain additional
financing in the future for working capital, capital expenditures,
acquisitions, general corporate purposes or other purposes may be impaired,
(ii) a reduction of funds available to the Company for its operations or for
capital expenditures as a result of the dedication of a substantial portion of
the Company's cash flow to the payment of principal of and interest on the
Company's indebtedness, including indebtedness under the Notes,
(iii) restrictions in the Indenture, the Series A/B Indenture (as defined
herein) and the Series E/F Indenture (as defined herein) that limit the
Company's ability to borrow additional funds or to dispose of assets, which
may affect the Company's flexibility in planning for, and reacting to, changes
in its business, including possible acquisition activities, (iv) the
possibility of an event of default under the financial and operating covenants
contained in the Company's debt instruments, including the Indenture, which,
if not cured or waived, could have a material adverse effect on the Company
and (v) an inability to adjust to rapidly changing market conditions and
consequent vulnerability in the event that a downturn in general economic
conditions or its business because of the Company's reduced financial
flexibility. Moreover, future acquisitions may require the Company to alter
its capitalization significantly. See "Description of the Notes -- Certain
Covenants."
The Company's ability to meet its debt service obligations and to reduce
its total indebtedness will be dependent upon the Company's future
performance, which will be subject to levels of activity in offshore oil and
gas exploration, development and production, particularly in the Gulf, general
economic conditions and to financial, business and other factors affecting the
operations of the Company, many of which are beyond its control. There can be
no assurance that the Company's future performance will not be adversely
affected by such economic conditions and financial, business and other
factors. See "Capitalization."
If the Company is unable to generate sufficient cash flow from
operations in the future to service its debt, it may be required to refinance
all or a portion of its existing debt, including the Notes, or to obtain
additional financing. There can be no assurance that any such refinancing
would be possible or that any additional financing could be obtained. The
inability to obtain additional financing could have a material adverse effect
on the Company. For example, a default by the Company under the terms of the
Indenture could result in a default under the terms of the Bank Credit
Facility.
Restrictions Imposed by Terms of the Company's Indebtedness
The Indenture, the Series A/B Indenture and the Series E/F Indenture
restrict, among other things, the ability of the Company and its subsidiaries
to incur additional indebtedness, pay dividends or make certain other
restricted payments, incur liens to secure pari passu or subordinated
indebtedness, apply net proceeds from certain asset sales, merge or
consolidate with any other person, sell, assign, transfer, lease, convey or
otherwise dispose of substantially all of the assets of the Company, or enter
into certain transactions with affiliates. In addition, the Bank Credit
Facility contains, and future credit facilities may contain, other and more
restrictive covenants and prohibits the Company from prepaying other
indebtedness (including the Notes) before indebtedness outstanding under the
Bank Credit Facility or such other credit facility. As a result of these
covenants, the ability of the Company to respond to changes in business and
economic conditions and to secure additional financing, if needed, may be
significantly restricted, and the Company may be prevented from engaging in
transactions that might otherwise be considered beneficial to the Company.
See "Description of the Notes -- Certain Covenants." The Bank Credit Facility
also requires, and future credit facilities may require, the Company to
maintain specified financial ratios and satisfy certain financial condition
tests. The Company's ability to meet these financial ratios and tests can be
affected by events beyond its control, and there can be no assurance that the
Company will meet those tests. The breach of any of these covenants could
result in a default under the Bank Credit facility or such other credit
facility. Upon the occurrence of an event of default under the Bank Credit
Facility or such other credit facility, the lenders thereunder could elect to
declare all amounts outstanding under such credit facilities, including
accrued interest or other obligations to be immediately due and payable. If
the Company were unable to repay those amounts, such lenders could proceed
against the collateral granted to them to secure that indebtedness. If
amounts outstanding under such credit facilities were to be accelerated, there
can be no assurance that the assets of the Company would be sufficient to
repay in full that indebtedness and other indebtedness of the Company,
including the Notes.
Ranking of the Notes; Effective Subordination
The Old Notes are, and the New Notes will be, senior unsecured
obligations of the Company ranking pari passu with all existing or future
senior indebtedness of the Company, including the Series A and B Notes and the
Series E Notes. Holders of secured indebtedness of the Company and its
subsidiaries, including secured indebtedness under the Bank Credit Facility,
however, will have claims with respect to the assets constituting collateral
for such indebtedness that are superior to the claims of the holders of the
Notes. In the event of a liquidation or insolvency of the Company or if any
of its secured indebtedness is accelerated, the secured assets of the Company
will be available to pay obligations on the Notes only after the Bank Credit
Facility and any other secured indebtedness has been paid in full.
Accordingly, the Old Notes are, and the New Notes will be, effectively
subordinated to claims of secured creditors of the Company and its Restricted
Subsidiaries to the extent of such pledged collateral. At September 30, 1997,
after giving pro forma effect to the Original Offering, the Acquisition, the
Common Stock Offering and the Series E Offering, the Company and its
Restricted Subsidiaries would have had $110.5 million of secured indebtedness
that effectively would rank senior to the Notes and the Subsidiary Guarantees
(as defined herein) in right of payment, and no other Indebtedness other than
the Notes. The Indenture limits the amount of liens securing the Bank Credit
Facility to $65 million plus 15% of Consolidated Net Tangible Assets. See
"Description of the Notes -- Certain Covenants -- Incurrence of Indebtedness."
Potential Inability to Fund a Change of Control Offer
Upon a Change of Control (as defined in the Indenture), the Company will
be required to offer to repurchase all outstanding Notes at 101% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of repurchase. Certain events involving a Change
of Control may result in an event of default under the Bank Credit Facility
and may result in an event of default under certain other indebtedness of the
Company that may be incurred in the future. An event of default under the
Bank Credit Facility or other indebtedness could result in acceleration of
such indebtedness, in which case the Notes would be effectively subordinated
to the borrowings under the Bank Credit Facility or other secured indebtedness
to the extent of any liens securing that debt. There can be no assurance that
sufficient funds will be available to the Company at the time of any Change of
Control to make any required repurchases of Notes tendered, pay its
obligations under the Bank Credit Facility or other indebtedness upon the
occurrence of a Change of Control. These provisions may be deemed to have
anti-takeover effects and may delay, defer or prevent a merger, tender offer
or other takeover attempt. Notwithstanding these provisions, the Company
could enter into certain transactions, including certain recapitalizations,
that would not constitute a Change of Control but would increase the amount of
debt outstanding at such time. See "Description of the Notes -- Repurchase at
Options of Holders."
Fraudulent Transfer Considerations
Under applicable provisions of the United States Bankruptcy Code or
comparable provisions of state fraudulent transfer or conveyance law, if the
Guarantors, at the time they incurred the Subsidiary Guarantees, (a) incurred
such indebtedness with the intent to hinder, delay or defraud creditors, or
(b)(i) received less than reasonably equivalent value or fair consideration
and (ii)(A) was insolvent at the time of such incurrence, (B) was rendered
insolvent by reason of such incurrence (and the application of the proceeds
thereof), (C) was engaged or was about to engage in a business or transaction
for which the assets remaining with the Company constituted unreasonably small
capital to carry on its business, or (D) intended to incur, or believed that
it would incur, debts beyond its ability to pay such debts as they mature,
then, in each such case, a court of competent jurisdiction could void, in
whole or in part, the Subsidiary Guarantees or, in the alternative,
subordinate the Subsidiary Guarantees to existing and future indebtedness of
the Guarantors. Among other things, a legal challenge of the Subsidiary
Guarantees issued by any Guarantor on fraudulent conveyance grounds may focus
on the benefits, if any, realized by such Guarantor as a result of the
issuance by the Company of the Notes. To the extent the Subsidiary Guarantee
was voided as a fraudulent conveyance or held unenforceable for any other
reason, the holders of the Notes would cease to have any claim against such
Guarantor and would be creditors solely of the Company and any Guarantor whose
Subsidiary Guarantees were not voided or held unenforceable. In such event,
the claims of the holders of the Notes against the issuer of an invalid
Subsidiary Guarantee would be subject to the prior payment of all liabilities
of such Guarantor. There can be no assurance that, after providing for all
prior claims, there would be sufficient assets to satisfy the claims of the
holders of the Notes relating to any avoided portions of any of the Subsidiary
Guarantees.
The measure of insolvency for purposes of the foregoing would likely
vary depending upon the law applied in such case. Generally, however, a
Guarantor would be considered insolvent if the sum of its debts, including
contingent liabilities, was greater than all of its assets at a fair
valuation, or if the present fair saleable value of its assets was less than
the amount that would be required to pay the probable liabilities on its
existing debts, including contingent liabilities, as such debts become
absolute and matured. The Company believes that, for purposes of the United
States Bankruptcy Code and state fraudulent transfer or conveyance laws, the
Subsidiary Guarantees were issued, with respect to the Old Notes, and will be
issued, with respect to the New Notes, without the intent to hinder, delay or
defraud creditors and for proper purposes and in good faith, and that the
Guarantors will receive reasonably equivalent value or fair consideration
therefor, and that after the issuance of the Subsidiary Guarantees and the
application of the net proceeds therefrom, the Guarantors will be solvent,
have sufficient capital for carrying on their businesses and will be able to
pay their debts as they mature. However, there can be no assurance that a
court passing on such issues would agree with the determination of the
Company.
The Acquisition
The Company used the net proceeds from the Original Offering to finance
a portion of the Acquisition. The Acquisition involves a number of risks that
could adversely affect the Company's operating results, including (i) the
diversion of management's attention; (ii) the integration of the operations
and personnel of Saevik Supply; (iii) exposure to risk of currency
fluctuations; (iv) the assumption of potential liabilities, disclosed or
undisclosed, associated with Saevik Supply's business; (v) the increase in the
overall indebtedness of the Company as a result of the Acquisition; and (vi)
the inability to retain key members of Saevik Supply's current management
following the Acquisition. There can be no assurance that the operations of
Saevik Supply will be successfully integrated or that such operations will
ultimately have a positive impact on the Company, its financial condition or
results of operations. See "The Acquisition."
Dependence on Oil and Gas Industry; Market Volatility
The Company's operations depend on activity in offshore oil and gas
exploration, development and production. The level of exploration and
development activity has traditionally been volatile as a result of
fluctuations in oil or natural gas prices and their uncertainty in the future.
A significant or prolonged reduction in oil or natural gas prices in the
future would likely depress offshore drilling and development activity and
reduce the demand for the Company's marine support services. A substantial
reduction of activity in the Gulf and other areas where the Company operates
could have a material adverse effect on the Company's financial condition and
results of operations.
Charter rates for marine support vessels also depend on the supply of
vessels. Excess vessel capacity in the industry can result primarily from the
construction of new vessels and the mobilization of vessels between market
areas. The addition of new capacity to the worldwide offshore marine fleet
could increase competition in those markets where the Company operates, which,
in turn, could have a material adverse effect on the Company's financial
condition and results of operations.
Management of Growth
The Company has rapidly expanded its operations through acquisitions in
the past two years. The Acquisition significantly increased the geographic
scope of the Company's operations and its overall size. The Company's growth
has placed, and is expected to continue to place, substantial demands on the
Company's managerial, operational, financial and other resources. Management
of this growth will require the Company to continue to invest in its
operations, including its financial and management information systems, and to
increase its efforts to retain, motivate and effectively manage its employees,
all of which may increase the Company's operating expenses. Any failure by
the Company to achieve and manage this growth as planned could have a material
adverse effect on the Company's business, financial condition and results of
operations.
Competition
The Company's business is highly competitive. Competition in the marine
support services industry primarily involves factors such as (i) price,
service and reputation of vessel operators and crews, (ii) the availability of
vessels of the type and size needed by the customer and (iii) the quality of
equipment. Certain of the Company's competitors have significantly greater
financial resources than the Company and more experience operating in
international areas.
Operating Risks and Insurance
Marine support vessels are subject to operating risks such as
catastrophic marine disaster, adverse weather conditions, mechanical failure,
collisions, oil and hazardous substance spills and navigation errors. The
occurrence of any of these events may result in damage to or loss of Company
vessels and such vessels' tow or cargo or other property and injury to
passengers and personnel. Such occurrences may also result in a significant
increase in operating costs or liability to third parties. The Company
maintains insurance coverage against certain of these risks, which management
considers to be customary in the industry. There can be no assurance,
however, that the Company's existing insurance coverage can be renewed at
commercially reasonable rates or that such coverage will be adequate to cover
future claims that may arise.
Government Regulation
The Company's operations are materially affected by federal, state and
local regulation, as well as certain international conventions, private
industry organizations and laws and regulations in jurisdictions where the
Company's vessels operate and are registered. These regulations govern worker
health and safety and the manning, construction and operation of vessels.
These organizations establish safety criteria and are authorized to
investigate vessel accidents and recommend approved safety standards. The
failure to comply with the requirements of any of these laws or the rules or
regulations of these agencies and organizations could have a material adverse
effect on the Company.
The Company's operations also are subject to federal, state and local
laws and regulations and laws and regulations in jurisdictions where the
Company's vessels operate and are registered, which control the discharge of
pollutants into the environment and which otherwise relate to environmental
protection. Substantial costs may be incurred in complying with such laws and
regulations, and noncompliance can subject the Company to substantial
liabilities. There can be no assurance that such costs and liabilities will
not be incurred. The Company's operations are subject to the Outer
Continental Shelf Lands Act, and regulations promulgated thereunder, which
regulate the activities of offshore service vessels, require vessel owners and
operators to demonstrate financial and operational responsibility and provide
for certain limitations on the liability of vessel owners and operators. The
Company's operations are also subject to the Clean Water Act, which imposes
strict controls against the discharge of oil and other pollutants into surface
waters within its jurisdiction. Any hazardous substances transported by the
Company are subject to regulation under the Resource Conservation and Recovery
Act and the Hazardous Materials Transportation Act. Numerous other
environmental laws and regulations also apply to the operations of the
Company, and such laws and regulations are subject to frequent change. While
the Company's insurance policies provide coverage for accidental occurrence of
seepage and pollution or clean-up and containment of the foregoing, pollution
and similar environmental risks generally are not fully insurable.
Among the more significant of the conventions applicable to the
operations of Saevik Supply are: (i) the International Convention for the
Prevention of Pollution of the Sea, 1973, 1979 Protocol, (ii) the
International Convention on the Safety of Life at Sea, 1974, 1978 and
1981/1983 Protocol, and (iii) the International Convention on Standards of
Training, Certification and Watchkeeping for Seafarers.
Any violation of such laws or regulations could result in significant
liability to the Company, and any amendment to such laws or regulations that
mandates more stringent compliance standards would likely cause an increase in
the Company's vessel maintenance expenses.
Seasonality
The Company's marine operations are seasonal and depend, in part, on
weather conditions. Historically, the Company has enjoyed its highest
utilization rates during the second and third quarters, as mild weather
provides favorable conditions for offshore exploration, development and
construction in the Gulf. Adverse weather conditions during the winter months
generally curtail offshore development operations and can particularly impact
lift boat utilization rates. Activity in the North Sea is also subject to
delays during periods of adverse weather, but is not affected by seasonality
to the extent activity in the Gulf is. Accordingly, the results of any one
quarter are not necessarily indicative of annual results or continuing trends.
Age of Fleet
Because of overcapacity within the marine support services industry on a
worldwide basis, there has been no significant construction of supply boats
since 1983. As of October 15, 1997, the average age of the Company's vessels
(based on the date of construction) was approximately 16 years. The average
age of Saevik Supply's fleet is approximately 10 years. Management believes
that after a vessel has been in service for approximately 30 years, repair,
vessel certification and maintenance costs may become no longer economically
justifiable. There can be no assurance that the Company will be able to
maintain its fleet by extending the economic life of existing vessels through
major refurbishment or by acquiring new or used vessels.
International Operations
The Acquisition substantially increased the percentage of the Company's
operations conducted in currencies other than the United States dollar.
Changes in the value of foreign currencies relative to the United States
dollar could adversely affect the Company's results of operations and
financial position, and transaction gains and losses could contribute to
fluctuations in the Company's results of operations. There can be no
assurance that fluctuations in foreign currency rates will not have a material
adverse effect on the Company's results of operations.
The Company's international operations are subject to a number of risks
inherent with any business operating in foreign countries. These risks
include, among others, political instability, potential vessel seizure,
nationalization of assets, currency restrictions and exchange rate
fluctuations, import-export quotas and other forms of public and governmental
regulation, all of which are beyond the control of the Company. Although it
is impossible to predict the nature and the likelihood of any events of these
types, if such an event should occur, it could have a material adverse effect
on the Company's financial condition and results of operations.
Absence of a Public Market for the Notes
The New Notes are a new issue of securities for which there currently is
no public market. The Company does not intend to list the New Notes on any
securities exchange. Although the Initial Purchasers have informed the
Company that they intend to make a market in the New Notes, the Initial
Purchasers are not obligated to do so and any market making may be
discontinued at any time at the sole discretion of the Initial Purchasers. If
a market develops for the New Notes, there can be no assurance as to the
liquidity of such market, the ability of holders to sell their New Notes or
the prices at which holders would be able to sell the New Notes. If a market
for the New Notes does develop, the New Notes may trade at a discount to their
principal amount, depending on prevailing interest rates, the market for
similar securities, the performance of the Company, the performance of the oil
and gas services industry and other factors. Pursuant to the Registration
Rights Agreement, the Company is required to commence the Exchange Offer for
the New Notes or file the Shelf Registration Statement covering resales of the
New Notes within specified time periods.
Consequences of Failure to Exchange
Holders of Old Notes who do not exchange their Old Notes for New Notes
pursuant to the Exchange Offer will continue to be subject to the restrictions
on transfer of Old Notes set forth in the legend thereon as a consequence of
the issuance of the Old Notes pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act. In general, the Old Notes may not be offered or sold, unless registered
under the Securities Act, except pursuant to an exemption from, or in a
transaction not subject to, the Securities Act and applicable state securities
laws. Except as described below in the second paragraph under "The Exchange
Offer -- Purpose and Effect," the Company does not anticipate registering the
Old Notes under the Securities Act.
Dependence on Key Personnel
The Company depends on the continued services of Thomas E. Fairley, its
President and Chief Executive Officer, Ronald O. Palmer, the Chairman of the
Board, Victor M. Perez, its Chief Financial Officer, and other key management
personnel. The loss of any of these persons could adversely affect the
Company's operations.
Forward-Looking Statements
This Prospectus includes and incorporates by reference "forward-looking
statements" within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. All statements other than statements of
historical fact included in this Prospectus or incorporated by reference
herein, including without limitation the statements under the captions
"Summary," "Risk Factors" and "The Acquisition" and elsewhere herein or
incorporated by reference regarding Trico's financial position and liquidity,
its strategic alternatives, future capital needs, exploration, development and
capital expenditures of the oil and gas industry, business strategies, and
other plans and objectives of management of the Company for future operations
and activities, are forward-looking statements. These statements are based on
certain assumptions and analyses made by the Company in light of its
experience and its perception of historical trends, current conditions,
expected future developments and other factors it believes are appropriate
under the circumstances. Such statements are subject to risks and
uncertainties, including the risk factors discussed above, general economic
and business conditions, the business opportunities that may be presented to
and pursued by the Company, changes in law or regulations and other factors,
many of which are beyond the control of the Company. Although Trico believes
that the expectations reflected in such forward-looking statements are
reasonable, it can give no assurance that such expectations will prove to have
been correct. Prospective investors are therefore cautioned that any such
statements are not guarantees of future performance and the actual results or
developments may differ materially from those projected in the forward-looking
statements. Important factors that could cause actual results to differ
materially from Trico's expectations are disclosed in this Prospectus.
- 2 -
THE ACQUISITION
On October 7, 1997, the Company presented an offer to the board of
directors of Saevik Supply to purchase, subject to specified conditions, all of
the outstanding shares of Saevik Supply (the "Saevik Shares") for 165 NOK per
share, or approximately $290 million (at then prevailing exchange rates)
through a public bid conducted in accordance with the rules of the Oslo Stock
Exchange. Trico's offer was accepted by the board of directors of Saevik
Supply on October 7, 1997 with the condition that Saevik Supply's principal
office continue to be located in Fosnavag, Norway, and that the branch offices
in Kristiansand, Norway and Aberdeen, Scotland remain in operation. In
addition, the board of directors of Saevik Supply agreed not to solicit an
offer or merger proposal by any third party with respect to Saevik Supply or
the Saevik Shares and to notify Trico if any third party approached the board
of directors about an offer or merger proposal and to recommend Trico's bid to
the stockholders of Saevik Supply. Prior to making its decision to commence
its public bid, Trico received the irrevocable agreement of Per Saevik, the
Company's founder and chief executive officer, and Ulstein Industrier AS, who
together owned 19.18% of the outstanding Saevik Shares, to tender their shares
in the public bid, and conducted its due diligence investigation of Saevik
Supply.
Trico commenced its public bid on October 27, 1997, and it expired on
November 25, 1997. Trico paid approximately $287.5 million for the Saevik
Shares that were tendered by November 25, 1997, which amounted to
approximately 99% of the outstanding Saevik Shares.
Under Norwegian law, the Company was required to make a mandatory bid to
acquire for cash the remaining Saevik Shares. The mandatory bid was made at
a price of 165 NOK per share, the minimum required under Norwegian law, and
is expected to close by January 14, 1998. If the Company acquires all
the remaining Saevik Shares pursuant to the mandatory
bid, it expects to pay approximately $1.5 million for such shares. If any
shares remain outstanding upon completion of the mandatory bid, under
Norwegian law, Trico will have the compulsory right to purchase such shares,
and the holders of such remaining shares will have the right to require that
their shares be redeemed. In the absence of an amicable agreement by the
parties as to the value of such shares, Norwegian law would require that the
amount be determined in court.
Trico intends to continue to manage the Saevik Supply fleet utilizing the
present operational management of Saevik Supply, all of which have remained
with the Company.
In order to fund the Acquisition and certain related expenses, the
Company borrowed $68.5 million under the Revolving Credit Facility and $125.0
million in Term Loans and issued the Old Notes, which yielded approximately
$98.7 million in net proceeds. The approximate $123.0 million in net proceeds
from the Common Stock Offering, together with other available funds, were used
to repay the Term Loans. The approximate $68.6 million in net proceeds of the
Series E Offering were used to repay indebtedness under the Revolving Credit
Facility.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
New Notes offered hereby. In consideration for issuing the New Notes as
contemplated in this Prospectus, the Company will receive in exchange a like
principal amount of Old Notes, the terms of which are identical in all
material respects to the New Notes. The Old Notes surrendered in exchange for
the New Notes will be retired and canceled and cannot be reissued.
Accordingly, issuance of the New Notes will not result in any change in
capitalization of the Company. The Company used all the net proceeds of the
Original Offering (approximately $98.7 million) to finance a portion of the
Acquisition. See "The Acquisition."
- 3 -
CAPITALIZATION
The following table sets forth (i) the consolidated unaudited
capitalization of the Company as of September 30, 1997, (ii) on a pro forma
basis giving effect to the Acquisition as if it occurred on September 30, 1997
and (iii) as adjusted to give effect to the incurrence of long-term debt under
the Bank Credit Facility to fund the Acquisition, the Original Offering, the
Common Stock Offering and the Series E Offering. This table should be read
in conjunction with the Company's pro forma consolidated financial statements,
consolidated financial statements and respective notes thereto incorporated by
reference herein.
September 30, 1997
Actual Pro Forma
As
Adjusted
(Dollars in thousands)
Long-term debt, including current maturities:
8 1/2% Senior Notes due 2005 $ 110,000 $ 280,000
Bank debt 4,000 110,446
---------- ----------
Total long-term debt 114,000 390,446
---------- ----------
Stockholders' equity:
Preferred stock, $.01 par value per share; 5,000,000
shares authorized; no shares outstanding --- ---
Common Stock, $.01 par value per share; 40,000,000
shares authorized; 15,755,598 and 20,355,598
issued and 15,683,566 and 20,283,566 outstanding(1) 158 204
Additional paid-in capital 94,143 217,125
Retained earnings 34,453 34,453
Treasury stock (72,032 shares) (1) (1)
---------- ----------
Total stockholders' equity 128,753 251,781
---------- ----------
Total capitalization $ 242,753 $ 642,227
========== ==========
(1)Excludes an aggregate of 1,494,080 shares of Common Stock issuable as of
September 30, 1997 upon exercise of options granted under the Company's
stock option plans.
- 4 -
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The following table sets forth selected consolidated financial and
operating data for the dates and periods indicated. The financial information
for the two month period ended December 31, 1993 and for each of the years
ended December 31, 1994, 1995 and 1996 and as of December 31, 1993, 1994, 1995
and 1996 is derived from the Company's audited consolidated financial
statements and notes thereto. The selected consolidated financial data as of
September 30, 1996 and 1997 and for the nine month periods then ended are
derived from the unaudited consolidated statements of the Company for such
periods. In the opinion of management, the unaudited financial statements of
the Company reflect all adjustments (consisting of only normal recurring
adjustments) necessary for fair presentation of the financial condition and
results of operations for these periods. This information should be read in
conjunction with the consolidated financial statements and notes thereto and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" set forth in the Company's Annual Report on Form 10-K for the year
ended December 31, 1996 and Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997 incorporated by reference into this Prospectus. The
financial information for the year ended December 31, 1992 and the ten month
period ended October 28, 1993 reflects operating results for the vessels
acquired by the Company from Chrysler Capital Corporation ("Chrysler") in
October 1993.
<TABLE>
<CAPTION>
Year ended December 31,
---------------------------------------------------------
Ten
months Two months Nine months
ended ended ended September 30,
October 28, December 31, ------------------
1992(1) 1993(1) 1993(1) 1994 1995 1996 1996 1997(2)
-------- -------- --------- -------- -------- -------- -------- --------
(Financial data in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Income Statement
Data:
Total revenues $ 17,988 $ 26,871 $ 6,145 $ 29,034 $ 26,698 $ 53,484 $ 32,885 $ 83,879
Direct operating
expenses:
Direct vessel 13,360 16,511 3,042 17,165 16,988 24,150 16,314 28,388
operating
expenses
General and 1,338 1,412 256 2,057 2,509 3,277 2,224 4,157
administrative
Amortization of 1,099 1,176 222 1,490 1,930 2,158 1,432 2,093
marine inspection
costs
Other 367 875 33 764 545 309 211 204
Revenues less $1,824 $6,897 --- --- --- --- --- ---
direct operating
expenses
Depreciation and 502 2,786 2,740 4,478 2,861 7,995
amortization
Operating income 2,090 4,772 1,986 19,112 9,843 41,042
Interest expense 620 3,767 3,850 2,282 1,710 3,677
Amortization of 60 344 381 263 217 144
deferred financing
costs
Gain on sale of --- --- (244) (59) (7) (255)
assets
Other income, net --- (51) (32) (79) (65) (134)
Income tax expense 564 226 (670) 5,814 2,788 13,164
(benefit)
Extraordinary item, --- --- --- (917) (917) ---
net of taxes
Net income (loss) $ 846 $ 486 $ (1,299) $ 9,974 $ 4,283 $ 24,446
Income (loss) per $ 0.14 $ 0.08 $ (0.21) $ 0.88 $ 0.46 $ 1.45
share before
extraordinary
item(3)
Extraordinary item --- --- --- (0.07) (0.08) --- ---
per share(3)
Net income (loss) $ 0.14 $ 0.08 $ (0.21) 0.81 0.38 1.45
per share(3)
Weighted average 6,040 6,020 6,101 12,381 11,171 16,889
common shares(3)
Other Financial
Data:
Capital
expenditures:
Acquisitions --- --- 1,475 71,031 26,062 99,626
Vessel --- 30 3,474 7,232 2,827 19,281
construction/
major upgrades
Maintenance and 17 2,141 2,509 3,164 1,594 9,527
other
Ratios:
Earnings to fixed 3.1x 1.2x ---(4) 7.7x 5.1x 10.8x
charges
Pro forma earnings --- --- --- 1.4x --- 3.7x
to fixed changes(8)
</TABLE>
<TABLE>
<CAPTION>
1993(1)
-----------------------
Ten Two
months months Nine months
ended ended ended
October 28, December 31, Year ended December 31, September 30,
1993 1993 ------------------------ ---------------
------ ------ 1994 1995 1996 1996 1997
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Data:
Supply boats:
Average number of 16.0 16.0 16.0 16.0 21.2 18.2 40.7
vessels
Average vessel 85% 90% 77% 78% 94% 93% 85%
utilization
rate(5)
Average vessel day
rate(6) $ 2,833 $ 3,253 $ 3,057 $ 3,060 $ 4,917 $ 4,302 $ 7,130
Lift boats:
Average number of 5.0 5.0 5.0 5.9 6.0 6.0 6.0
vessels
Average vessel 70% 57% 57% 45% 67% 66% 71%
utilization rate(5)
Average vessel day
rate(6) $ 4,735 $ 4,970 $ 5,017 $ 4,656 $ 4,995 $ 4,805 $ 5,705
Crew/line handling boats:(7)
Average number of 24.0 23.0 22.3 16.8 23.3 22.8 24.0
vessels
Average vessel 93% 91% 82% 85% 95% 95% 97%
utilization rate(5)
Average vessel day
rate(6) $ 1,401 $ 1,500 $ 1,465 $ 1,480 $ 1,579 $ 1,547 $ 1,937
</TABLE>
<TABLE>
<CAPTION>
December 31,
---------------------------------------- September 30,
1993 1994 1995 1996 1997
--------- -------- -------- --------- ------------
(In thousands)
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Working capital (deficit), $ (2,704) $ 1,550 $ (844) $ 10,073 $ 12,925
including current
maturities of long-
term debt
Property and equipment, net 45,191 38,508 39,264 119,142 230,038
Total assets 55,207 51,419 52,113 143,355 277,757
Long-term debt 37,560 35,452 36,780 21,000 114,000
Stockholders' equity 6,450 7,002 5,712 103,980 128,753
</TABLE>
(1) Reflects the historical results of operations of the Company for the two
months ended December 31, 1993 and the historical results of operations
for the vessels acquired from Chrysler on October 29, 1993, for the ten
months ended October 28, 1993 and the year ended December 31, 1992.
Accordingly, interest expense, other income, net, income tax expense,
depreciation and amortization and net income are not presented for such
vessels because such items would be based on Chrysler's historical cost
and borrowings and are not relevant to the ongoing results of the
Company.
(2) Does not give pro forma effect to any of the acquisitions completed by
the Company in 1997, including its acquisition of 11 supply vessels in
July 1997.
(3) Share and per share amounts have been adjusted to reflect a 100% stock
dividend effective June 9, 1997.
(4) Earnings were insufficient to cover fixed charges, and fixed charges
exceeded earnings by approximately $2.0 million.
(5) Average utilization rates are average rates for all vessels based on a
365-day year. Vessels are considered utilized when they are being
operated or being mobilized/demobilized under contracts with customers.
(6) Average day rates are the average of revenue per day per vessel under
contract.
(7) Average utilization and day rates for all line handling vessels reflect
the contract rates for the Company's unconsolidated Brazilian operating
company.
(8) The pro forma information gives effect to the Acquisition as if it
occurred at the beginning of the period and as adjusted to give effect to
the incurrence of long-term debt under the Bank Credit Facility to fund the
Acquisition, the Original Offering, the Common Stock Offering and the Series
E Offering. This ration should be read in conjunction with the Company's
pro forma consolidated financial statements and respective notes thereto
incorporated by reference herein.
- 5 -
THE EXCHANGE OFFER
Purpose and Effect
The Old Notes were sold by the Company on November 14, 1997 to the
Initial Purchasers in a private transaction not subject to the registration
requirements of the Securities Act. The Initial Purchasers offered and sold
the Old Notes only (i) to "qualified institutional buyers" (as defined in Rule
144A) in compliance with Rule 144A and (ii) to a limited number of other
institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act) that, prior to their purchase of Old Notes,
delivered to the Initial Purchasers a letter containing certain
representations and agreements. In connection with the sale of the Old Notes,
the Company entered into the Registration Rights Agreement, which requires
that the Company and the Guarantors conduct the Exchange Offer. The
Registration Rights Agreement further provides that the Company and the
Guarantors must use their reasonable best efforts to (i) cause the Exchange
Offer Registration Statement to be declared effective on or before the 120th
day after the date on which the Old Notes were originally issued under the
Indenture (the "Closing Date") and (ii) consummate the Exchange Offer on or
before the 180th day after the Closing Date. Except as provided below, upon
the completion of the Exchange Offer, the Company's obligation with respect to
the registration of the Old Notes and the New Notes will terminate. The
summary herein of certain provisions of the Registration Rights Agreement does
not purport to be complete and is subject to, and is qualified in its entirety
by reference thereto. Copies of the Registration Rights Agreement are
available as set forth under "Description of the Notes -- Additional
Information." As a result of the filing and the effectiveness of the Exchange
Offer Registration Statement, certain Liquidated Damages provided for in the
Registration Rights Agreement will not become payable by the Company.
Following the completion of the Exchange Offer (except as set forth in the
paragraph immediately below), certain holders of Old Notes not tendered will
not have any further registration rights and those Old Notes will continue to
be subject to certain restrictions on transfer. Accordingly, the liquidity of
the market for the Old Notes could be adversely affected upon completion of
the Exchange Offer.
In order to participate in the Exchange Offer, a holder must represent
to the Company, among other things, that (i) the New Notes acquired pursuant
to the Exchange Offer are being obtained in the ordinary course of such
holder's business, (ii) such holder is not engaging in and does not intend to
engage in a distribution of the New Notes, (iii) such holder does not have an
arrangement or understanding with any person to participate in the
distribution of the New Notes and (iv) such holder is not an "affiliate," as
defined under Rule 405 promulgated under the Securities Act, of the Company.
Pursuant to the Registration Rights Agreement, the Company is required to file
a Shelf Registration Statement for a continuous offering pursuant to Rule 415
under the Securities Act in respect of the Old Notes (and cause such shelf
registration statement to be declared effective by the Commission and keep it
continuously effective, supplemented and amended for prescribed periods) if
(i) the Company is not permitted to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy, or
(ii) any holder of Transfer Restricted Securities notifies the Company prior
to the 20th day following consummation of the Exchange Offer (A) that such
holder is prohibited by law or Commission policy from participating in the
Exchange Offer or (B) that such holder may not resell the New Notes acquired
by it in the Exchange Offer to the public without delivering a prospectus and
the prospectus contained in the Exchange Offer Registration Statement would
not be available for such resale by such holder. Other than as set forth in
this paragraph, no holder will have the right to participate in the Shelf
Registration Statement nor otherwise to require that the Company register such
holder's shares of Old Notes under the Securities Act. See "Description of
the Notes -- Registration Rights; Liquidated Damages."
The Company has not requested, and does not intend to request, an
interpretation by the staff of the Commission with respect to whether the New
Notes issued pursuant to the Exchange Offer in exchange for the Old Notes may
be offered for sale, resold or otherwise transferred by any holder without
compliance with the registration and prospectus delivery provisions of the
Securities Act. Based on interpretations by the staff of the Commission set
forth in no-action letters issued to third parties unrelated to the Company
and the Guarantors, the Company and the Guarantors believe that New Notes
issued pursuant to the Exchange Offer in exchange for Old Notes may be offered
for resale, resold and otherwise transferred by holders thereof (other than
any such holder or such other person that is an "affiliate" of the Company
within the meaning of Rule 405 under the Securities Act), without compliance
with the registration and prospectus delivery provisions of the Securities
Act, provided that (i) the New Notes are acquired in the ordinary course of
such holder's business, (ii) such holder is not engaging in and does not
intend to engage in a distribution of the New Notes, and (iii) such holder
does not have an arrangement or understanding with any person to participate
in the distribution of the New Notes. Any holder who tenders in the Exchange
Offer with the intention to participate, or for the purpose of participating,
in a distribution of the New Notes or who is an affiliate of the Company may
not rely upon such interpretation by the staff of the Commission and, in the
absence of an exemption therefrom, must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
secondary resale transaction. Failure to comply with such requirements in
such instance may result in such holder incurring liabilities under the
Securities Act for which the holder is not indemnified by the Company. Each
broker-dealer that receives New Notes for its own account in exchange for Old
Notes, where those Old Notes were acquired by the broker-dealer as a result of
its market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of these New
Notes. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. The Company has
agreed that, for a period of one year after the effective date of the Exchange
Offer Registration Statement, it will make the Prospectus available to any
broker-dealer for use in connection with any such resale.
The Exchange Offer is not being made to, nor will the Company accept
surrenders for exchange from, holders of Old Notes in any jurisdiction in
which this Exchange Offer or the acceptance thereof would not be in compliance
with the securities or blue sky laws of such jurisdiction.
Participation in the Exchange Offer is voluntary and holders should
carefully consider whether to accept. Holders of the Old Notes are urged to
consult their financial and tax advisors in making their own decisions on
whether to participate in the Exchange Offer.
Consequences of Failure to Exchange
Old Notes which are not tendered for exchange in the Exchange Offer will
remain outstanding and interest thereon will continue to accrue. Following
the completion of the Exchange Offer (except as set forth above in the second
paragraph under "-- Purpose and Effect"), holders of Old Notes not tendered
will not have any further registration rights and those Old Notes will remain
restricted securities within the meaning of Rule 144 of the Securities Act.
Accordingly, the liquidity of the market for a holder's Old Notes could be
adversely affected upon completion of the Exchange Offer if the holder does
not participate in the Exchange Offer.
Terms of the Exchange Offer
General
Upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal, the Company will accept any and
all Old Notes validly tendered and not withdrawn prior to 5:00 p.m., New York
City time, on the Expiration Date. The Company will issue $1,000 principal
amount of New Notes in exchange for each $1,000 principal amount of
outstanding Old Notes accepted in the Exchange Offer. Holders may tender some
or all of their Old Notes pursuant to the Exchange Offer. However, Old Notes
may be tendered only in integral multiples of $1,000 in principal amount.
The form and terms of the New Notes are identical in all material
respects to the form and terms of the Old Notes except that (i) the New Notes
are being registered under the Securities Act and, therefore, will not bear
legends restricting their transfer and (ii) holders of the New Notes, other
than certain broker-dealers, will not be entitled to the rights of holders of
the Transfer Restricted Securities under the Registration Rights Agreement.
The New Notes will evidence the same debt as the Old Notes, will be issued
pursuant to, and entitled to the benefits of, the Indenture pursuant to which
the Old Notes were issued and will be treated as a single class thereunder
with any Old Notes that remain outstanding. The Exchange Offer is not
conditioned upon any minimum aggregate principle amount of Old Notes being
tendered for exchange.
As of December 30, 1997, the Old Notes representing $100,000,000
aggregate principal amount were outstanding and there were three registered
holders. This Prospectus, together with the Letter of Transmittal, is being
sent to such registered holders and to others believed to have beneficial
interests in the Old Notes. Holders of Old Notes do not have any appraisal or
dissenters' rights under the General Corporation Law of the State of Delaware
or the Indenture in connection with the Exchange Offer. The Company intends
to conduct the Exchange Offer in accordance with the applicable requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder.
As of the date of this Prospectus, $100.0 million aggregate principal
amount of Old Notes are issued and outstanding. In connection with the
issuance of the Old Notes, the Company arranged for the Old Notes to be
eligible for trading in The PORTAL Market, the National Association of
Securities Dealers' screen based, automated market trading of securities
eligible for resale under Rule 144A.
The Company will be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering
holders for the purpose of receiving the New Notes from the Company and
delivering the New Notes to such holders. If any tendered Old Notes are not
accepted for exchange because of an invalid tender, the occurrence of certain
other events set forth herein or otherwise, certificates for any such
unaccepted Old Notes will be returned, without expense, to the tendering
holder thereof as promptly as practicable after the Expiration Date.
Holders who tender Old Notes in the Exchange Offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of Old
Notes pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than certain applicable taxes, in connection with the Exchange
Offer. See "--Fees and Expenses."
Expiration Date; Extensions; Amendments
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
_____, 1998, unless the Company, in its sole discretion, extends the Exchange
Offer, in which case the term "Expiration Date" shall mean the latest date and
time to which the Exchange Offer is extended. In order to extend the Exchange
Offer, the Company will notify the Exchange Agent and each registered holder
of any extension by oral or written notice prior to 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
During any extension of the Exchange Offer, all Old Notes previously tendered
pursuant to the Exchange Offer and not withdrawn will remain subject to the
Exchange Offer. The date of the exchange of the New Notes for Old Notes will
be the first Nasdaq National Market ("NNM") trading day following the
Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Old Notes, to extend the Exchange Offer or, if any of the
conditions set forth under "The Exchange Offer -- Conditions to Exchange
Offer" have not been satisfied and have not been waived by the Company, to
terminate the Exchange Offer, by giving oral or written notice of such delay,
extension or termination to the Exchange Agent, or (ii) to amend the terms of
the Exchange Offer in any manner deemed by it to be advantageous to the
holders of the Old Notes. Any such delay in acceptance, extension,
termination or amendment will be followed as promptly as practicable by oral
or written notice thereof to the registered holders. If the Exchange Offer is
amended in any manner determined by the Company to constitute a material
change, the Company will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered holders, and
the Company will extend the Exchange Offer for a period of time, depending
upon the significance of the amendment and the manner of disclosure to the
registered holders, if the Exchange Offer would otherwise expire during such
period.
Interest on the New Notes
The New Notes will bear interest payable semi-annually on February 1 and
August 1 of each year, commencing February 1, 1998. Holders of New Notes of
record on January 15, 1998 will receive interest on February 1, 1998 from the
date of issuance of the New Notes, plus an amount equal to the accrued
interest on the Old Notes from the date of issuance of the Old Notes, November
14, 1997, to the date of exchange thereof. Consequently, assuming the
Exchange Offer is consummated prior to the record date in respect of the
February 1, 1998 interest payment for the Old Notes, holders who exchange
their Old Notes for New Notes will receive the same interest payment on
February 1, 1998 that they would have received had they not accepted the
Exchange Offer. Interest on the Old Notes accepted for exchange will cease to
accrue upon issuance of the New Notes.
Procedures for Tendering Old Notes
The tender to the Company of Old Notes by a holder thereof pursuant to
one of the procedures set forth below will constitute an agreement between
such holder and the Company in accordance with the terms and subject to the
conditions set forth herein and in the Letter of Transmittal. A holder of the
Old Notes may tender such Old Notes by (i) properly completing, signing and
dating a Letter of Transmittal or a facsimile thereof (all references in this
Prospectus to a Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with any corresponding certificate
or certificates representing the Old Notes being tendered (if in certificated
form) and any required signature guarantees, to the Exchange Agent at its
address set forth in the Letter of Transmittal on or prior to the Expiration
Date (or complying with the procedure for book-entry transfer described
below), or (ii) complying with the guaranteed delivery procedures described
below.
If tendered Old Notes are registered in the name of the signer of the
Letter of Transmittal and the New Notes to be issued in exchange therefor are
to be issued (and any untendered Old Notes are to be reissued) in the name of
the registered holder (which term, for the purposes described herein, shall
include any participant in DTC (also referred to as a book-entry facility)
whose name appears on a security listing as the owner of Old Notes), the
signature of such signer need not be guaranteed. In any other case, the
tendered Old Notes must be endorsed or accompanied by written instruments of
transfer in form satisfactory to the Company and duly executed by the
registered holder and the signature on the endorsement or instrument of
transfer must be guaranteed by an eligible guarantor institution that is a
member of or a participant in the Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Program, the Stock
Exchange Medallion Program or an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible Institution").
If the New Notes or Old Notes not exchanged are to be delivered to an address
other than that of the registered holder appearing on the note register for
the Old Notes, the signature in the Letter of Transmittal must be guaranteed
by an Eligible Institution.
THE METHOD OF DELIVERY OF OLD NOTES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF
THE HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED
MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, BE USED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE
SENT TO THE COMPANY. ONLY HOLDERS OF OLD NOTES MAY TENDER SUCH OLD NOTES IN
THE EXCHANGE OFFER. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES, OR NOMINEES TO EFFECT THESE TRANSACTIONS
FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee and who
wishes to tender should contact the registered holder promptly and instruct
the registered holder to tender on the beneficial owner's behalf. If the
beneficial owner wishes to tender on the owner's own behalf, the owner must,
prior to completing and executing the Letter of Transmittal and delivering the
owner's Old Notes, either make appropriate arrangements to register ownership
of the Old Notes in the beneficial owner's name or obtain a properly completed
bond power from the registered holder. The transfer of registered ownership
may take considerable time.
The Company understands that the Exchange Agent has confirmed with DTC
that any financial institution that is a participant in DTC's system may
utilize DTC's Automated Tender Offer Program ("ATOP") to tender Old Notes.
The Company further understands that the Exchange Agent will request, within
two business days after the date the Exchange Offer commences, that DTC
establish an account with respect to the Old Notes for the purpose of
facilitating the Exchange Offer, and any participant may make book-entry
delivery of Old Notes by causing DTC to transfer such Old Notes into the
Exchange Agent's account in accordance with DTC's ATOP procedures for
transfer. However, the exchange of the Old Notes so tendered will only be
made after timely confirmation (a "Book-Entry Confirmation") of such book-
entry transfer and timely receipt by the Exchange Agent of an Agent's Message
(as defined in the next sentence), and any other documents required by the
Letter of Transmittal. The term "Agent's Message" means a message,
transmitted by DTC and received by the Exchange Agent and forming a part of
Book-Entry Confirmation, which states that DTC has received an express
acknowledgment from a participant tendering Old Notes which are the subject of
such Book-Entry Confirmation and that such participant has received and agrees
to be bound by the terms of the Letter of Transmittal and that the Company may
enforce such agreement against such participant.
A tender will be deemed to have been received as of the date when
(i) the tendering holder's properly completed and duly signed Letter of
Transmittal accompanied by the Old Notes (or a confirmation of book-entry
transfer of such Old Notes into the Exchange Agent's account at DTC), is
received by the Exchange Agent, or (ii) a Notice of Guaranteed Delivery or
letter, telegram or facsimile transmission to similar effect from an Eligible
Institution is received by the Exchange Agent. Issuances of New Notes in
exchange for Old Notes tendered pursuant to a Notice of Guaranteed Delivery or
letter, telegram or facsimile transmission to similar effect by an Eligible
Institution will be made only against submission of a duly signed Letter of
Transmittal (and any other required documents) and deposit of the tendered Old
Notes.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and withdrawal of tendered Old Notes will be determined
by the Company, in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any or all tenders
not in proper form or the acceptance for exchange of which may, in the opinion
of counsel for the Company, be unlawful. The Company also reserves the
absolute right to waive any of the conditions of the Exchange Offer or any
defect or irregularity in the tender of any Old Notes. The Company's
interpretation of the terms and conditions of the Exchange Offer (including
the instructions in the Letter of Transmittal) will be final and binding on
all parties. Unless waived, any defects or irregularities in connection with
tenders of Old Notes must be cured within such time as the Company shall
determine. Although the Company intends to notify holders of defects or
irregularities with respect to tenders of Old Notes, neither the Company, the
Exchange Agent, nor any other person shall be under any duty to give
notification of any defects or irregularities in tenders or incur any
liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering
holders, unless otherwise provided in the Letter of Transmittal, as soon as
practicable following the Expiration Date.
In addition, the Company reserves the right in its sole discretion to
purchase or make offers for any Old Notes that remain outstanding after the
Expiration Date or, as set forth under "Conditions to the Exchange Offer," to
terminate the Exchange Offer and, to the extent permitted by applicable law,
purchase Old Notes in the open market, in privately negotiated transactions,
or otherwise. The terms of any such purchases or offers could differ from the
terms of the Exchange Offer.
In all cases, issuance of New Notes for Old Notes that are accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of certificates for such Old Notes or a timely Book-
Entry Confirmation of such Old Notes into the Exchange Agent's account at DTC,
a properly completed and duly executed Letter of Transmittal (or, with respect
to DTC and its participants, electronic instructions in which the tendering
holder acknowledges its receipt of and agreement to be bound by the Letter of
Transmittal), and all other required documents. If any tendered Old Notes are
not accepted for any reason set forth in the terms and conditions of the
Exchange Offer or if Old Notes are submitted for a greater principal amount
than the holder desires to exchange, such unaccepted or non-exchanged Old
Notes will be returned without expense to the tendering Holder thereof (or, in
the case of Old Notes tendered by book-entry transfer into the Exchange
Agent's account at DTC pursuant to the book-entry transfer procedures
described below, such nonexchanged Old Notes will be credited to an account
maintained with such book-entry transfer facility) as promptly as practicable
after the expiration or termination of the Exchange Offer.
Each broker-dealer that receives New Notes for its own account in
exchange for Old Notes, where the Old Notes were acquired by such broker-
dealer as a result of market-making activities or other trading activities,
must acknowledge that it will deliver a prospectus in connection with any
resale of such New Notes.
Guaranteed Delivery Procedures
If the holder desires to accept the Exchange Offer and time will not
permit a Letter of Transmittal or Old Notes to reach the Exchange Agent before
the Expiration Date or the procedure for book-entry transfer cannot be
completed on a timely basis, a tender may be effected if the Exchange Agent
has received at its office, on or prior to the Expiration Date, a letter,
telegram or facsimile transmission from an Eligible Institution setting forth
the name and address of the tendering holder, the name(s) in which the Old
Notes are registered and the certificate number(s) of the Old Notes to be
tendered, and stating that the tender is being made thereby and guaranteeing
that, within three NNM trading days after the date of execution of such
letter, telegram or facsimile transmission by the Eligible Institution, such
Old Notes, in proper form for transfer (or a confirmation of book-entry
transfer of such Old Notes into the Exchange Agent's account at DTC), will be
delivered by such Eligible Institution together with a properly completed and
duly executed Letter of Transmittal (and any other required documents).
Unless Old Notes being tendered by the above-described method are deposited
with the Exchange Agent within the time period set forth above (accompanied or
preceded by a properly completed Letter of Transmittal and any other required
documents), the Company may, at its option, reject the tender. Copies of a
Notice of Guaranteed Delivery which may be used by Eligible Institutions for
the purposes described in this paragraph are available from the Exchange
Agent.
Terms and Conditions of the Letter of Transmittal
The Letter of Transmittal contains, among other things, certain terms
and conditions which are summarized below and are part of the Exchange Offer.
Each holder who participates in the Exchange Offer will be required to
represent that any New Notes received by it will be acquired in the ordinary
course of its business, that such holder is not participating in, and has no
arrangement with any person to participate in, the distribution (within the
meaning of the Securities Act) of the New Notes, and that such holder is not
an affiliate of the Company.
Old Notes tendered in exchange for New Notes (or a timely confirmation
of a book-entry transfer of such Old Notes into the Exchange Agent's account
at DTC) must be received by the Exchange Agent, with the Letter of Transmittal
and any other required documents, by the Expiration Date or within the time
periods set forth above pursuant to a Notice of Guaranteed Delivery from an
Eligible Institution. Each holder tendering the Old Notes for exchange sells,
assigns and transfers the Old Notes to the Exchange Agent, as agent of the
Company, and irrevocably constitutes and appoints the Exchange Agent as the
holder's agent and attorney-in-fact to cause the Old Notes to be transferred
and exchanged. The holder warrants that it has full power and authority to
tender, exchange, sell, assign and transfer the Old Notes and to acquire the
New Notes issuable upon the exchange of such tendered Old Notes, that the
Exchange Agent, as agent of the Company, will acquire good and unencumbered
title to the tendered Old Notes, free and clear of all liens, restrictions,
charges and encumbrances, and that the Old Notes tendered for exchange are not
subject to any adverse claims when accepted by the Exchange Agent, as agent of
the Company. The holder also warrants and agrees that it will, upon request,
execute and deliver any additional documents deemed by the Company or the
Exchange Agent to be necessary or desirable to complete the exchange, sale,
assignment and transfer of the Old Notes. All authority conferred or agreed
to be conferred in the Letter of Transmittal by the holder will survive the
death, incapacity or dissolution of the holder and any obligation of the
holder shall be binding upon the heirs, personal representatives, successors
and assigns of such holder.
Withdrawal Rights
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date unless previously accepted for exchange.
To withdraw a tender of Old Notes in the Exchange Offer, a written,
facsimile or (for DTC participation) electronic ATOP transmission notice of
withdrawal must be received by the Exchange Agent at its address set forth
herein prior to 5:00 p.m., New York City time, on the Expiration Date prior to
acceptance for exchange thereof by the Company. Any such notice of withdrawal
must (i) specify the name of the person having deposited the Old Notes to be
withdrawn (the "Depositor"), (ii) identify the Old Notes to be withdrawn
(including the certificate number or numbers and principal amount of such Old
Notes), (iii) contain a statement that such holder is withdrawing its election
to have such Old Notes exchanged, (iv) be signed by the holder in the same
manner as the original signature on the Letter of Transmittal by which such
Old Notes were tendered (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee register
the transfer of such Old Notes in the name of the person withdrawing the
tender, and (v) specify the name in which any such Old Notes are to be
registered, if different from that of the Depositor. If Old Notes have been
tendered pursuant to the procedure for book-entry transfer, any notice of
withdrawal must specify the name and number of the account at the book-entry
transfer facility. All questions as to the validity, form, and eligibility
(including time of receipt) of such notices will be determined by the Company,
whose determination shall be final and binding on all parties. Any Old Notes
so withdrawn will be deemed not to have been validly tendered for purposes of
the Exchange Offer and no Exchange Notes will be issued with respect thereto
unless the Old Notes so withdrawn are validly returned. Any Old Notes which
have been tendered but which are not exchanged for any reason will be returned
to the holder thereof without cost to such holder as soon as practicable after
withdrawal, rejection of tender, or termination of the Exchange Offer.
Properly withdrawn Old Notes may be retendered by following one of the
procedures (described above) under "-- Procedures for Tendering Old Notes" at
any time on or prior to the Expiration Date.
Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer, the Company
will not be required to accept for exchange, or to issue New Notes in exchange
for, any Old Notes and may terminate or amend the Exchange Offer if at any
time before the acceptance of such Old Notes for exchange or the exchange of
the New Notes for such Old Notes, the Company determines that the Exchange
Offer violates applicable law or Commission policy.
If the Company determines that it may terminate the Exchange Offer, as
set forth above, the Company may (i) refuse to accept any Old Notes and return
any Old Notes that have been tendered to the holders thereof, (ii) extend the
Exchange Offer and retain all Old Notes tendered prior to the Expiration of
the Exchange Offer, subject to the rights of such holders of tendered Old
Notes to withdraw their tendered Old Notes or (iii) waive such termination
event with respect to the Exchange Offer and accept all properly tendered Old
Notes that have not been withdrawn. If such waiver constitutes a material
change in the Exchange Offer, the Company will disclose such change by means
of a supplement to this Prospectus that will be distributed to each registered
holder of Old Notes, and the Company will extend the Exchange Offer for a
period of time, depending upon the significance of the waiver and the manner
of disclosure to the registered holders of the Old Notes, if the Exchange
Offer would otherwise expire during such period. Holders of Old Notes will
have certain rights against the Company under the Registration Rights
Agreement should the Company fail to consummate the Exchange Offer. See
"Description of the Notes -- Registration Rights; Liquidated Damages."
The foregoing conditions are for the sole benefit of the Company and may
be asserted by the Company regardless of the circumstances giving rise to any
such condition or may be waived by the Company in whole or in part at any time
and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights shall not be deemed a waiver
of any such right and each such right shall be deemed an ongoing right which
may be asserted at any time and from time to time.
In addition, the Company will not accept for exchange any Old Notes
tendered, and no New Notes will be issued in exchange for, any such Old Notes,
if at such time any stop order shall be threatened or in effect with respect
to the Registration Statement of which this Prospectus constitutes a part of
the qualification of the Indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). In any such event the Company is
required to use every reasonable effort to obtain the withdrawal of any stop
order at the earliest possible time.
Exchange Agent
Texas Commerce Bank National Association has been appointed as Exchange
Agent for the Exchange Offer. Questions and requests for assistance and
requests for additional copies of this Prospectus or of the Letter of
Transmittal should be directed to the Exchange Agent addressed as follows:
For Information by Telephone:
(214) 672-5125
or
(800) 275-2048
By Registered or Certified Mail: By Hand or Overnight Delivery
Service:
Texas Commerce Bank National Texas Commerce Bank National Association
Association
Corporate Trust Services Corporate Trust Services
P. O. Box 2320 1201 Main Street, 18th Floor
Dallas, Texas 75221-2320 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
By Facsimile Transmission (for Eligible Institutions only):
(214) 672-5746
(Facsimile Confirmation)
(214) 672-5125
or
(800) 275-2048
Fees and Expenses
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional
solicitations may be made by telecopy, telephone or in person by officers and
regular employees of the Company. No additional compensation will be paid to
any such officers and employees who engage in soliciting tenders. The Company
will not make any payments to brokers, dealers or other persons soliciting
acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will
reimburse the Exchange Agent for its reasonable out-of-pocket expenses in
connection therewith. The Company may also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus, Letters of
Transmittal and related documents to the beneficial owners of the Old Notes
and in handling or forwarding tenders for exchange.
The estimated cash expenses to be incurred in connection with the
Exchange Offer, including fees and expenses of the Exchange Agent, accounting,
legal and related fees and expenses, will be paid by the Company.
DESCRIPTION OF THE NOTES
General
The Old Notes were issued pursuant to an Indenture dated November 14,
1997 between the Company, the initial Guarantors (as defined below) and Texas
Commerce Bank National Association, as trustee (the "Trustee"), the terms of
which are substantially identical to those of the Series A/B Indenture and the
Series E/F Indenture. The New Notes will be issued under the Indenture, which
will be qualified under the Trust Indenture Act, upon the effectiveness of the
Registration Statement of which this Prospectus forms a part. The terms of
the Notes will include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Notes will be
subject to all such terms, and prospective investors are referred to the
Indenture and the Trust Indenture Act for a statement thereof. The following
summary of certain provisions of the Indenture does not purport to be
complete. Copies of the Indenture and the Registration Rights Agreement are
available as set forth under "--Additional Information." The definitions of
certain terms used in the following summary are set forth below under "--
Certain Definitions." As used in this "Description of the Notes," the
"Company" means Trico Marine Services, Inc., but not any of its subsidiaries.
The Notes will be general unsecured obligations of the Company, ranking
pari passu in right of payment with all other future senior borrowings of the
Company and senior in right of payment to any subordinated indebtedness
incurred by the Company in the future and on a parity with the Company's
outstanding Series A and B Notes and the Series E Notes. The Notes will be
effectively subordinated, however, to all future secured obligations of the
Company to the extent of the assets securing such obligations and to all
current and future obligations of the Subsidiaries of the Company that are not
Guarantors. On a pro forma basis giving effect to the Original Offering, the
Acquisition, the Common Stock Offering and the Series E Offering, at September
30, 1997, the Company would have had $390.5 million in outstanding
Indebtedness, $110.5 million of which would have been secured. The Indenture
permits the Company and its Subsidiaries to incur additional indebtedness,
including additional secured indebtedness, under certain circumstances. See
"Risk Factors--Substantial Indebtedness," "Capitalization" and "--Certain
Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock."
Any Old Notes that remain outstanding after the completion of the
Exchange Offer, together with the New Notes issued in connection with the
Exchange Offer, will be treated as a single class of securities under the
Indenture.
As of the date of the Indenture, all of the Company's principal
operating Subsidiaries are Restricted Subsidiaries. Under certain
circumstances, the Company will be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries will not
be subject to many of the restrictive covenants set forth in the Indenture.
Principal, Maturity and Interest
The Notes will be limited in aggregate principal amount to $100.0
million and will mature on August 1, 2005. Interest on the Notes will accrue
at the rate of 8.50% per annum and will be payable semi-annually in arrears on
February 1 and August 1 of each year, commencing on February 1, 1998, to
holders of record on the immediately preceding January 15 and July 15.
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 of the Old Notes. Interest will be computed on the basis of a 360-
day year comprised of twelve 30-day months. Principal of and premium,
interest and Liquidated Damages, if any, on the Notes will be payable at the
office or agency of the Company maintained for such purpose or, at the option
of the Company, payment of interest and Liquidated Damages may be made by
check mailed to holders of the Notes at their respective addresses set forth
in the register of holders; provided, however, that all payments with respect
to Notes the holders of which have given wire transfer instructions to the
Company will be required to be made by wire transfer of immediately available
funds to the accounts specified by the holders thereof. Until otherwise
designated by the Company, the Company's office or agency will be the office
of the Trustee maintained for such purpose. The Notes will be issued in
denominations of $1,000 and integral multiples thereof.
Subsidiary Guarantees
The Company's payment obligations under the Notes will be jointly and
severally guaranteed (the "Subsidiary Guarantees") by all of the Company's
present and future Significant Subsidiaries ("Guarantors"). The obligations
of each Guarantor under its Subsidiary Guarantee will be a general unsecured
obligation of such Guarantor, ranking pari passu in right of payment with all
other current or future senior borrowings of such Guarantor, including
borrowings under the Credit Facility, and senior in right of payment to any
subordinated indebtedness, if any, incurred by such Guarantor in the future.
The Guarantors will be effectively subordinated, however, to all current and
future secured obligations of the Guarantors, including borrowings under the
Credit Facility.
The Indenture provides that no Guarantor may 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 the
following paragraph, the Person formed by or surviving any such consolidation
or merger (if other than such Guarantor) shall execute a Guarantee and deliver
an Opinion of Counsel in accordance with the terms of the 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 would be permitted by virtue of the Company's
pro forma Consolidated Interest Coverage Ratio, immediately after giving
effect to such transaction, to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test set forth in the
covenant described below the caption "--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock."
The Indenture provides that, in the event of a sale or other disposition
(including by way of merger or consolidation) of all of the assets or Capital
Stock of any Guarantor, then such Guarantor will be released and relieved of
any obligations under its Subsidiary Guarantee; provided, however, that the
Net Proceeds of such sale or other disposition are applied in accordance with
the applicable provisions of the Indenture. See "--Repurchase at the Option
of Holders--Asset Sales." In addition, the Indenture provides that, in the
event the Board of Directors designates a Guarantor to be an Unrestricted
Subsidiary, then such Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee, provided that such designation is
conducted in accordance with the applicable provisions of the Indenture.
Optional Redemption
The Notes will not be redeemable at the Company's option prior to
August 1, 2001. Thereafter, the Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period
beginning on August 1 of the years indicated below:
Year Percentage
2001 104.250%
2002 102.834%
2003 101.417%
2004 and thereafter 100.000%
Notwithstanding the foregoing, 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, on or prior to July 17,
2000, the Company may redeem up to 35% of the aggregate principal amount of
Notes originally issued at a redemption price of 108.5 % of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the redemption date, with the net cash proceeds of one or more
Qualified Equity Offerings, provided that (a) at least $65.0 million in
aggregate principal amount of Notes remains outstanding immediately after the
occurrence of each such redemption and (b) each such redemption occurs within
60 days of the date of the closing of each such Qualified Equity Offering.
Selection and Notice
If less than all of the Notes are to be redeemed at any time, selection
of Notes for redemption will be made by the Trustee on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that no Notes of $1,000 or less shall be redeemed in part.
Notices of redemption shall be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each holder of Notes to be
redeemed at its registered address. Notices of redemption may not be
conditional. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion thereof will be issued in the name of the holder thereof
upon cancellation of the original Note. Notes called for redemption become
due on the date fixed for redemption. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption.
Mandatory Redemption
Except as set forth below under "--Repurchase at the Option of Holders,"
the Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Repurchase at the Option of Holders
Change of Control
The Indenture provides that, upon the occurrence of a Change of Control,
the Company will 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 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
will mail a notice to each holder of Notes and the Trustee describing the
transaction that constitutes the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"), pursuant to the procedures required by
the Indenture and described in such notice. The Company will 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.
On or before the Change of Control Payment Date, the Company will, 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 will promptly mail
to each holder of Notes so tendered the Change of Control Payment for such
Notes, and the Trustee will 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 will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
Except as described above with respect to a Change of Control, the
Indenture does not contain provisions that permit the holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction. In addition, the Company
could enter into certain transactions, including acquisitions, refinancing or
other recapitalizations, that could affect the Company's capital structure or
the value of the Notes, but that would not constitute a Change of Control.
The occurrence of a Change of Control may result in a default under the Credit
Facility and give the lenders thereunder the right to require the Company to
repay all outstanding obligations thereunder. The Company's ability to
repurchase Notes following a Change of Control may also be limited by the
Company's then existing financial resources.
The Company will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in the 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.
A "Change of Control" will be deemed to have occurred upon the
occurrence of any of the following: (a) the sale, lease, transfer, conveyance
or other disposition (other than by 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.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors who (a) was a member of the Board of
Directors on the Series A/B Issue Date or (b) was nominated for election to
the Board of Directors with the approval of, or whose election to the Board of
Directors was ratified by, at least two-thirds of the Continuing Directors who
were members of the Board of Directors at the time of such nomination or
election.
Asset Sales
The Indenture provides that the Company will not, and will 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 Officer's 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 provision.
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 the Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $5.0 million, the
Company will be required to make an offer to all holders of Notes (an "Asset
Sale Offer") 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 principal 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 principal
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. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero. For purposes of this
paragraph only, any reference herein to "Notes" shall be deemed to include the
Old Notes, the New Notes, and notes issued under the Series A/B Indenture and
Series E/F Indenture, respectively.
Certain Covenants
Restricted Payments
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, (a) 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 such payment in connection with any merger or
consolidation 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); (b) 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); (c)
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
(d) make any Restricted Investment (all such payments and other actions set
forth in clauses (a) through (d) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) 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 the first paragraph of
the covenant described below under the caption "--Incurrence of Indebtedness
and Issuance of Preferred Stock;" and
(iii) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
after the Series A/B Issue Date (excluding Restricted Payments permitted by
clauses (b), (c),(d) and (f), but including, without duplication, Restricted
Payments permitted by clauses (a) and (e), of the next succeeding paragraph),
is less than the sum of (A) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from July 1, 1997 to the end
of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment (or,
if such Consolidated Net Income for such period is a deficit, less 100% of
such deficit), plus (B) 100% of the aggregate net cash proceeds received by
the Company from the issue or sale since the Series A/B Issue Date of Equity
Interests of the Company (other than Disqualified Stock) or of Disqualified
Stock or debt securities of the Company that have been converted into such
Equity Interests (other than any such Equity Interests or Disqualified Stock
or convertible debt securities that have been converted into Disqualified
Stock), plus (C) to the extent that any Restricted Investment that was made
after the Series A/B Issue Date is 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 market 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 any of the following (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 the Indenture, the Series A/B Indenture and the Series E/F
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 Company or any
of its Wholly Owned Restricted Subsidiaries; (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 by
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 will 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 will 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 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 the covenant
"Restricted Payments" were computed.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Indenture provides that the Company will not, and will 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 will 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 the covenant
described under the caption "--Repurchase at the Option of Holders--
Asset Sales";
(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, the
Indenture, the Series A and B Notes, the Series A/B Subsidiary
Guarantees, the Series A/B Indenture the Series E Notes, the Series E
Subsidiary Guarantees and the Series E/F 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 the Indenture to be
incurred (other than pursuant to clause (a) or (e) of this covenant).
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
the Indenture pursuant to which it is incurring such Indebtedness.
Liens
The Indenture provides that the Company will not, and will 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.
Sale-and-Leaseback Transactions
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, enter into any sale-and-leaseback
transactions; 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 the covenant described
above under the caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock" and (b) incurred a Lien to secure such Indebtedness pursuant
to the covenant described under the caption "--Liens," (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, the covenant described above
under the caption "--Repurchase at the Option of Holders--Asset Sales."
Issuances and Sales of Capital Stock of Wholly Owned Restricted
Subsidiaries
The Indenture provides that the Company (i) will not, and will 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 the covenant described above under the caption "--Repurchase At Option Of
Holders--Asset Sales," and (ii) will 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.
Dividend and Other Payment Restrictions Affecting Subsidiaries
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a)(i) pay
dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or (ii) pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries, (b)
make loans or advances to the Company or any of its Restricted Subsidiaries or
(c) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (1) the Credit Facility or Existing Indebtedness, each
as in effect on the Series A/B Issue Date, (2) the Indenture, the Notes, the
Series A/B Indenture, the Series A and B Notes, the Series E/F Indenture and
the Series E 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 the 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.
Merger, Consolidation, or Sale of Assets
The Indenture provides that the Company may 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 the 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 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 the covenant described
above under the caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock."
Transaction with Affiliates
The Indenture provides that the Company will not, and will 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 the 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.
Additional Subsidiary Guarantees
The Indenture provides that (a) if the Company or any of its Restricted
Subsidiaries shall, after the Series A/B Issue Date, acquire or create another
Significant Subsidiary, or (b) if, after such date, a Restricted Subsidiary
shall provide a guarantee under the Credit Facility or incur any Funded
Indebtedness, then such newly acquired or created Significant Subsidiary or
such Subsidiary described in clause (b) above, as the case may be, shall
execute a Subsidiary Guarantee and deliver an opinion of counsel in accordance
with the terms of the Indenture.
Reports
Whether or not the Company is required to do so by the rules and
regulations of the Commission, the Company will file with the Commission
(unless the Commission will not accept such a filing) and, within 15 days of
filing, or attempting to file, the same with the Commission, furnish to the
holders of the Notes (a) 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 Commission 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 (b) all current reports that would be
required to be filed with the Commission of Form 8-K if the Company were
required to file such reports. In addition, the Company and the Guarantors
will 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.
Events of Default and Remedies
The Indenture provides that each of the following constitutes an Event
of Default: (a) default for 30 days in the payment when due of interest or
Liquidated Damages on the Notes; (b) default in payment when due of the
principal of or premium, if any, on the Notes; (c) failure by the Company to
comply with the provisions described under the caption "--Repurchase at the
Option of Holders" or "--Certain Covenants--Merger, Consolidation, or Sale of
Assets"; (d) failure by the Company for 60 days after notice to comply with
any of its other agreements in the Indenture or the Notes; (e) default under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists or is created after the Series A/B Issue
Date, which default (i) is caused by a failure to pay principal of or premium
or interest on such Indebtedness prior to the expiration of the 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 any 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 grade period or the occurrence of such acceleration, as the case
may be, such Event of Default and any consequential acceleration of the Notes
shall be automatically rescinded, so long as such rescission does not conflict
with any judgment or decree; (f) 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; (g) 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 (h) 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 immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company any Guarantor, all
outstanding Notes will become due and payable 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 that
have become due solely because of the acceleration) have been cured or waived.
Holders of the Notes 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.
In the case of any Event of Default occurring 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 the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes.
The holders of a majority in 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 interest or Liquidated Damages on the Notes.
The Company will be required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company will be
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.
No Personal Liability of Directors, Officers, Employees and Stockholders
No 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 or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each holder of Notes by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws
and it is the view of the Commission that such a waiver is against public
policy.
Legal Defeasance and Covenant Defeasance
The Company may, at its option and at any time, elect to have all of the
obligations of itself and the Guarantors discharged with respect to the
outstanding Notes ("Legal Defeasance") except for (a) the rights of holders of
outstanding Notes to receive payments in respect of the principal of and
premium, interest and Liquidated Damages on such Notes when such payments are
due from the trust referred to below, (b) the Company's obligations with
respect to the Notes concerning issuing temporary Notes, registration of
Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an
office or agency for payment and money for security payments held in trust,
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the
Company's obligations in connection therewith and (d) the Legal Defeasance
provisions of the Indenture. In addition, the Company may, at its option and
at any time, elect to have the obligations of the Company released with
respect to certain covenants that are described in the Indenture ("Covenant
Defeasance") and thereafter any omission to comply with such obligations shall
not constitute a Default or Event of Default with respect to the Notes. In
the event Covenant Defeasance occurs, certain event (not including non-
payment, bankruptcy, receivership, rehabilitation and insolvency events)
described under "Events of Default and Remedies" will no longer constitute an
Event of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the holders of the Notes, cash in U.S. 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 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, (ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling or (B)
since the Series A/B Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such opinion of counsel shall confirm that, the holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred, (iii) in the case of
Covenant Defeasance, 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, (iv) 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 borrowing of
funds to be applied to such deposit), (v) such Legal Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a
default under any material agreement or instrument (other than the 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, (vi) the
Company must have delivered to the Trustee an opinion of counsel 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, (vii) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others and (viii) the Company must deliver to the
Trustee an Officers' Certificate and an opinion of counsel, each stating that
all conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Transfer and Exchange
A holder of Notes may transfer or exchange Notes in accordance with 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 will not be required to transfer or
exchange any Note selected for redemption. Also, the Company will not be
required to transfer or exchange any Note for a period of 15 days before a
selection of Notes to be redeemed.
The registered holder of a Note will be treated as the owner of it for
all purposes, and all references to "holders" in this "Description of the
Notes" are to registered holders unless otherwise indicated.
Amendment and Waiver
Except as provided below, the Indenture or the Notes may be amended 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, 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 (including consents obtained in
connection with a tender offer or exchange offer for Notes).
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 or
waiver, (b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other
than provisions relating to the covenants described above under the caption "-
- - -Repurchase at the Option of Holders"), (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 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 the Indenture relating to waivers of past defaults or the
rights of holders of Notes to receive payments of principal of or premium,
interest or Liquidated Damages on the Notes (except as permitted in clause (g)
hereof), (g) waive a redemption payment with respect to any Note (other than a
payment required by one of the covenants described above under the caption "--
Repurchase at the Option of Holders"), (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.
Notwithstanding the foregoing, without the consent of any holder of
Notes, the Company, the Guarantors and the Trustee may amend or supplement the
Indenture or the Notes 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 Notes in the case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the holders of Notes or
that does not adversely affect the legal rights under the Indenture of any
such holder, to secure the Notes pursuant to the requirements of the "Liens"
covenant, to add any additional Guarantor or to release any Guarantor from its
Subsidiary Guarantee, in each case as provided in the Indenture, or to comply
with requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
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.
Concerning the Trustee
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage
in other transactions; however, if it acquires any conflicting interest it
must eliminate such conflict within 90 days, apply to the Commission for
permission to continue or resign.
The holders of a majority in principal amount of the then outstanding
Notes will have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the
conduct of his own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the
Indenture at the request of any holder of Notes, unless such holder shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
Governing Law
The Indenture, the Notes and the Subsidiary Guarantees provide that they
are governed by the laws of the State of New York.
Additional Information
Anyone who receives this Prospectus may obtain a copy of the Indenture
and Registration Rights Agreement without charge by writing to Trico Marine
Services, Inc., 2401 Fountainview, Suite 920, Houston, Texas 77057, Attention:
Corporate Secretary.
Form, Denomination and Registration
Global Notes; Book Entry Form
Except as set forth in the next paragraph, the Notes will be evidenced
initially by one or more global notes (the "Global Note") which will be
deposited with, or on behalf of, DTC and registered in the name of Cede & Co.,
as DTC's nominee. Except as set forth below, record ownership of the Global
Note may be transferred, in whole or in part, only to another nominee of DTC
or to a successor of DTC or its nominee.
Notes (i) originally purchased by or transferred to "foreign purchasers"
or Institutional Accredited Investors who are not Qualified Institutional
Buyers or (ii) held by Qualified Institutional Buyers who elect to take
physical delivery of their certificates instead of holding their interests
through the Global Note (and which are thus ineligible to trade through DTC)
(collectively referred to herein as the "Non-Global Purchasers") will be
issued in registered certificated form ("Certificated Notes"). Upon the
transfer to a Qualified Institutional Buyer of any Certificated Note initially
issued to a Non-Global Purchaser, such Certificated Note will, unless the
transferee requests otherwise or the Global Note has previously been exchanged
in whole for Certificated Notes as described below, be exchanged for an
interest in the Global Note.
Owners of beneficial interests in the Global Note may hold their
interests in the Global Note directly through DTC if such person is a
participant in DTC or indirectly through organizations that are participants
in DTC (the "Participants"). Persons who are not Participants may
beneficially own interests in the Global Note held by DTC only through
Participants or certain banks, brokers, dealers, trust companies and other
parties that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly ("Indirect Participants"). So long
as Cede & Co., as the nominee of DTC, is the registered owner of the Global
Note, Cede & Co. for all purposes will be considered the sole holder of the
Global Note. Owners of beneficial interests in the Global Note will be
entitled to have certificates registered in their names and to receive
physical delivery of Certificated Notes.
Payment of principal of and premium, interest and Liquidated Damages, if
any, on the Global Note will be made to Cede & Co., the nominee for DTC, as
registered owner of the Global Note, by wire transfer of immediately available
funds on the applicable payment date. Neither of the Company nor the Trustee
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
the Global Note or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
The Company has been informed by DTC that, with respect to any payment
of principal of, or premium, interest or Liquidated Damages, if any, on the
Global Note, DTC's practice is to credit Participants' accounts on the
applicable payment date, with payments in amounts proportionate to their
respective beneficial interests in the Notes represented by the Global Note as
shown on the records of DTC, unless DTC has reason to believe that it will not
receive payment on such payment date. Payments by Participants to owners of
beneficial interests in the Notes represented by the Global Note held through
such Participants will be the responsibility of such Participants, as is now
the case with securities held for the accounts of customers registered in
"street name."
Transfers between Participants will be effected in the ordinary way in
accordance with DTC's rules and will be settled in immediately available
funds. The laws of some states require that certain persons take physical
delivery of securities in definitive form. Consequently, the ability to
transfer beneficial interests in a Global Note to such persons may be limited.
Because DTC can only act on behalf of Participants, who in turn act on behalf
of Indirect Participants and certain banks and other parties, the ability of a
person having a beneficial interest in the Notes represented by the Global
Note to pledge such interest to persons or entities that do not participate in
the DTC system, or otherwise take actions in respect of such interest, may be
affected by the lack of a physical certificate evidencing such interest.
Neither the Company nor the Transfer Agent will have responsibility for
the performance of DTC or its Participants or Indirect Participants of their
respective obligations under the rules and procedures governing their
operations. DTC has advised the Company that it will take any action
permitted to be taken by a holder of Notes (including, without limitation, the
presentation of Notes for exchange as described below) only at the direction
of one or more Participants to whose account with DTC interests in the Global
Note are credited, and only in respect of the Notes represented by the Global
Note as to which such Participant or Participants has or have given such
direction.
DTC has also advised the Company that DTC is a limited purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its Participants and to facilitate the clearance and settlement
of securities transactions between Participants through electronic book-entry
changes to accounts of its Participants, thereby eliminating the need for
physical movement of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing corporations and may include
certain other organizations such as the Initial Purchasers. Certain of such
Participants (or their representatives), together with other entities, own
DTC. Indirect access to the DTC system is available to others such as banks,
brokers, dealers and trust companies that clear through, or maintain a
custodial relationship with, a Participant, either directly or indirectly.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the Global Note among Participants, it is
under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. If DTC is at any time
unwilling or unable to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, the Company will cause
Certificated Notes to be issued in exchange for the Global Notes.
Certificated Notes
Investors in the Notes may request that Certificated Notes be issued in
exchange for Notes represented by the Global Note. Furthermore, Certificated
Notes may be issued in exchange for Notes represented by the Global Note if no
successor depositary is appointed by the Company as set forth above.
Registration Rights; Liquidated Damages
Pursuant to the Registration Rights Agreement, the Company and the
Guarantors agreed to file the Exchange Offer Registration Statement with the
Commission with respect to the Exchange Offer. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company will offer to the holders
of Old Notes pursuant to the Exchange Offer who are able to make certain
representations the opportunity to exchange their Old Notes for New Notes. If
(a) the Company and the Guarantors are not permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law
or Commission policy or (b) any holder of Transfer Restricted Securities
notifies the Company prior to the 20th day following consummation of the
Exchange Offer that (i) it is prohibited by law or Commission policy from
participating in the Exchange Offer or (ii) that it may not resell the New
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not available for such resales, the Company will file with the
Commission a Shelf Registration Statement to cover resales of the Old Notes by
the holders thereof who satisfy certain conditions relating to the provision
of information in connection with the Shelf Registration Statement. The
Company will use its reasonable best efforts to cause the applicable
registration statement to be declared effective as promptly as possible by the
Commission. For purposes of the foregoing, "Transfer Restricted Securities"
means each Old Note until (A) the date on which such Old Note has been
exchanged by a person other than a broker-dealer for a New Note in the
Exchange Offer, (B) following the exchange by a broker-dealer in the Exchange
Offer of an Old Note for an New Note, the date on which such New 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, (C) the date on which such Old Note has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (D) the date on which such Old Note
is distributed to the public pursuant to Rule 144 under the Securities Act or
may be distributed to the public pursuant to Rule 144(k) under the Securities
Act.
The Registration Rights Agreement provides that (a) the Company will
file the Exchange Offer Registration Statement with the Commission on or prior
to 60 days after the date on which the Old Notes are originally issued under
the Indenture (the "Closing Date"), (b) the Company will use its reasonable
best efforts to have the Exchange Offer Registration Statement declared
effective by the Commission on or prior to 120 days after the Closing Date,
(c) unless the Exchange Offer would not be permitted by applicable law or
Commission policy, the Company will commence the Exchange Offer and use its
reasonable best efforts to issue, on or prior to 180 days after the Closing
Date, New Notes in exchange for all Old Notes tendered prior thereto in the
Exchange Offer and (d) if obligated to file the Shelf Registration Statement,
the Company will use its reasonable best efforts to file the Shelf
Registration Statement with the Commission on or prior to 60 days after such
filing obligation arises and to cause the Shelf Registration Statement to be
declared effective by the Commission on or prior to 120 days after such
obligation arises. If (i) the Company fails to file any of the Registration
Statements required by the Registration Rights Agreement on or before the date
specified for such filing, (ii) any of such Registration Statements is not
declared effective by the Commission on or prior to the date specified for
such effectiveness, (iii) the Company fails to consummate the Exchange Offer
within 180 days of the Closing Date with respect to the Exchange Offer
Registration Statement or (iv) the Shelf Registration Statement or the
Exchange Offer Registration Statement is declared effective but thereafter
ceases to be effective or usable in connection with resales of Transfer
Restricted Securities during the periods specified in the Registration Rights
Agreement (each such event referred to in clauses (i) through (iv) above, a
"Registration Default"), then the Company will pay Liquidated Damages to each
holder of Transfer Restricted Securities with respect to the first 90-day
period immediately following the occurrence of the first Registration Default
in an amount equal to $.05 per week per $1,000 principal amount of Transfer
Restricted Securities held by such holder. The amount of Liquidated Damages
will increase by an additional $.05 per week per $1,000 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 with respect to
Transfer Restricted Securities will be paid by the Company on each Damages
Payment Date (as defined in the Registration Rights Agreement) to the Global
Note holder by wire transfer of immediately available funds or by federal
funds check and to holders of Certificated Securities by wire transfer to the
accounts specified by them or by mailing checks to their registered addresses
if no such accounts have been specified. Following the cure of all
Registration Defaults, the accrual of Liquidated Damages will cease.
Holders of Old Notes will be required to make certain customary
representations to the Company in order to participate in the Exchange Offer
and will be required to deliver information to be used in connection with the
Shelf Registration Statement and to provide comments on the Shelf Registration
Statement within the time periods set forth in the Registration Rights
Agreement in order to have their Old Notes included in the Shelf Registration
Statement and benefit from the provisions regarding Liquidated Damages set
forth above.
Certain Definitions
Set forth below are certain defined terms used in the Indenture.
Reference is made to the Indenture for a full disclosure of all such terms, as
well as any other capitalized terms used herein for which no definition is
provided.
"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.
"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 disposition in the ordinary course of
business (provided that the disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole will be governed
by the provisions of the Indenture described above under the caption "--
Repurchase at the Option of Holders--Change of Control" and the provisions
described above under the caption "--Certain Covenants--Merger, Consolidation,
or Sale of Assets" and not by the provisions of the Asset Sales covenant), (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 the 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 the covenant described under the caption "--Certain Covenants--
Transactions with Affiliates"; (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-leaseback 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.
"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).
"Common Stock" means the Common Stock of the Company, par value $.01 per
share.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus, to
the extent deducted or excluded in calculating Consolidated Net Income for
such period, (a) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale, (b) provision for taxes based on
income or profits of such Person and its Restricted Subsidiaries, (c)
Consolidated Interest Expense of such Person and its Restricted Subsidiaries
and (d) depreciation and amortization (including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) of such Person and its Restricted Subsidiaries,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for
such period to the Consolidated Interest Expense of such Person for such
period; provided, however, that the Consolidated Interest Coverage Ratio shall
be calculated giving pro forma effect to each of the following transactions as
if each such transaction had occurred at the beginning of the applicable four-
quarter reference period: (a) any incurrence, assumption, guarantee or
redemption by the Company or any of its Restricted Subsidiaries of any
Indebtedness (other than revolving credit borrowings) subsequent to the
commencement of the period for which the Consolidated Interest Coverage Ratio
is being calculated but prior to the date on which the event for which the
calculation of the Consolidated Interest Coverage Ratio is made (the
"Calculation Date"); (b) any acquisition that has been made by the Company or
any of its Restricted Subsidiaries, or approved and expected to be consummated
within 30 days of the Calculation Date, including, in each case, through a
merger or consolidation, and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date (in which case Consolidated
Cash Flow for such reference period shall be calculated without giving effect
to clause (c) of the proviso set forth in the definition of Consolidated Net
Income); and (c) any other transaction that may be given pro forma effect in
accordance with Article 11 of Regulation S-X as in effect from time to time;
provided further, however, that (i) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded and
(ii) the Consolidated Interest Expense attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Consolidated
Interest Expense will not be obligations of the referent Person or any of its
Restricted Subsidiaries following the Calculation Date.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum, without duplication, of (a) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued (including, without limitation, amortization of
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations but excluding amortization of debt issuance costs) and (b) the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, provided that (a) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the referent Person or a Wholly
Owned Restricted Subsidiary thereof, (b) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary or its stockholders, (c) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded and (d) the cumulative effect of a
change in accounting principles shall be excluded.
"Consolidated Net Tangible Assets" means, with respect to any person as
of any date, the sum of the amounts that would appear on a consolidated
balance sheet of such Person and its consolidated Restricted Subsidiaries as
the total assets of such Person and its consolidated Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP and after deducting
therefrom, (a) to the extent otherwise included, unamortized debt discount and
expenses and other unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, licenses, organization or
development expenses and other intangible items, and (b) the aggregate amount
of liabilities of the Company and its Restricted Subsidiaries which may be
properly classified as current liabilities (including tax accrued as
estimated), determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (a) the consolidated equity of the common stockholders of
such Person and its consolidated Restricted Subsidiaries as of such date plus
(b) the respective amounts reported on such Person's balance sheet as of such
date with respect to any series of preferred stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of dividends unless
such dividends may be declared and paid only out of net earnings in respect of
the year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (i) all
write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made within 12
months after the acquisition of such business) subsequent to the Series A/B
Issue Date in the book value of any asset owned by such Person or a
consolidated Restricted Subsidiary of such Person, (ii) all investments as of
such date in unconsolidated Subsidiaries and in Persons that are not
Restricted Subsidiaries and (iii) all unamortized debt discount and expense
and unamortized deferred charges as of such date, in each case determined in
accordance with GAAP.
"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.
"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.
"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 the provisions of the Indenture described
under the caption "Repurchase at the Option of Holders--Change of Control" or
"Repurchase at the Option of Holders--Asset Sales," 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).
"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.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Facility) in
existence on the Series A/B Issue Date, until such amounts are repaid.
The term "fair market value" means, with respect to any asset or
Investment, the fair market value of such asset or Investment at the time of
the event requiring such determination, as determined in good faith by the
Board of Directors of the Company, or, with respect to any asset or Investment
in excess of $5.0 million (other than cash or Cash Equivalents), as determined
by a reputable appraisal firm that is, in the judgment of such Board of
Directors, qualified to perform the task for which such firm has been engaged
and independent with respect to the Company.
"Funded Indebtedness" means any Indebtedness for money borrowed that by
its terms matures at, or is extendible or renewable at the option of the
obligor to, a date more than 12 months after the date of the incurrence of
such Indebtedness.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession of the United States, which are in effect from time to time.
"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.
"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, notes, debentures 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.
"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 the final paragraph of the
covenant described above under the caption "--Certain Covenants--Restricted
Payments."
"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).
"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 assets 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, (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 reversed 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 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.
"Pari Passu Indebtedness" means, with respect to any Net Proceeds from
Assets 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.
"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 the covenant
described above under the caption "--Repurchase at the Option of Holders--
Asset Sales" 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 or 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 the covenant entitled "--
Incurrence of Indebtedness and Issuance of Preferred Stock" 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 its 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 its contemplation of such acquisition and do not extend to
any other property, (e) Liens to secure the performance of statutory
obligations, surety or appeal bonds, bid or performance bonds, insurance
obligations or other obligations of a like nature incurred in the ordinary
course of business, (f) Liens securing Hedging Obligations, (g) Liens existing
on the Series A/B Issue Date, (h) Liens securing Non-Recourse Debt, (i) any
interest or title of a lessor under a Capital Lease Obligation or an operating
lease, (j) Liens arising by reason of deposits necessary to obtain standby
letters of credit in the ordinary course of business, (k) Liens on real or
personal property or assets of the Company or a Restricted Subsidiary thereof
to secure Indebtedness incurred for the purpose of (i) financing all or any
part of the purchase price of such property or assets incurred prior to, at
the time of, or within 120 days after, the acquisition of such property or
assets or (ii) financing all or any part of the cost of construction of any
such property or assets, provided that the amount of any such financing shall
not exceed the amount expended in the acquisition of, or the construction of,
such property or assets and such Liens shall not extend to any other property
or assets of the Company or a Restricted Subsidiary (other than any associated
accounts, contracts and insurance proceeds), (l) Liens securing Permitted
Refinancing Indebtedness with respect to any Indebtedness referred to in
clause (k) above, and (m) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time outstanding and
that (1) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the ordinary
course of business) and (2) do not in the aggregate materially detract from
the value of the property or materially impair the use thereof in the
operation of business by the Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease
or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries; provided, however, that (a) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount of (or accreted value, if applicable) plus
premium, if any, and accrued interest on the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (b) such Permitted
Refinancing Indebtedness has a final maturity date no earlier than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (c) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness is subordinated in right of payment to the Notes on
terms at least as favorable 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 that 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.
"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).
"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.
"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.
"Series A/B Indenture" means the Indenture dated as of July 21, 1997
among the Company, the Subsidiary Guarantors thereto and Texas Commerce Bank
National Association, as Trustee, providing for the issuance of the Series A
and B Notes in the aggregate principal amount of $110,000,000, as such may be
amended and supplemented from time to time.
"Series A/B Issue Date" means the date on which the Series A and B Notes
were originally issued under the Series A/B Indenture.
"Series A and B Notes" means the Company's 8 1/2% Senior Notes due
August 1, 2005 issued pursuant to the Series A/B Indenture, as such may be
amended or supplemented from time to time.
"Series A/B Subsidiary Guarantees" means those subsidiary guarantees of
the Series A and B Notes issued pursuant to the Series A/B Indenture.
"Series E/F Indenture" means the Indenture dated December 24, 1997 among
the Company, the Subsidiary Guarantors thereto and Texas Commerce Bank
National Association, as Trustee, providing for the issuance of the Series E
Notes in an aggregate principal amount of $70.0 million, as such may be
amended and supplemented from time to time.
"Series E Subsidiary Guarantees" means those subsidiary guarantees of
the Series E Notes issued pursuant to the Series E/F Indenture.
"Significant Subsidiary" means (a) any Restricted Subsidiary of the
Company that would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the Series A/B Issue Date, (b) any other Restricted
Subsidiary of the Company that provides a guarantee under the Credit Facility
or incurs any Funded Indebtedness and (c) their respective successors and
assigns.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (b) any partnership (i) the sole general
partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (ii) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"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 the
Indenture described under the caption "--Certain Covenants--Transactions with
Affiliates," 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 the 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 the covenant
described above under the caption "--Certain Covenants--Restricted Payments."
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 the 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 under the covenant described under the caption "--
Incurrence of Indebtedness and Issuance of Preferred Stock," 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 under the covenant
described under the caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock," 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 Subsidiary were a wholly owned
Restricted Subsidiary.
LEGAL MATTERS
The validity of the Notes will be passed upon by Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, Louisiana.
EXPERTS
The Company's consolidated financial statements as of December 31, 1996
and 1995 and for the three years ended December 31, 1996, and related
financial statement schedule incorporated by reference in this Prospectus and
the Registration Statement of which this Prospectus forms a part, have been
audited by Coopers & Lybrand, L.L.P., independent accountants, as indicated in
their report with respect thereto and are incorporated herein by reference in
reliance upon the authority of said firm as experts in accounting and
auditing.
The consolidated financial statements of Saevik Supply as of December 31,
1996 and for the year ended December 31, 1996 incorporated by reference in
this Prospectus and the Registration Statement of which this Prospectus forms
a part, have been audited by KPMG as Gerd Leira, independent accountants, as
indicated in their report with respect thereto, and have been incorporated
herein by reference in reliance upon the authority of said firm as experts in
accounting and auditing.
The statements of assets acquired and liabilities assumed and revenue
less direct operating expenses of the Viking Vessels (as defined therein) for
the years ended December 31, 1994, 1995 and 1996 incorporated by reference in
this Prospectus and the Registration Statement of which this Prospectus forms
a part, have been audited by Deloitte & Touche as Roar Skuland, independent
accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm
as experts in accounting and auditing.
- 6 -
No dealer, salesman or other $100,000,000
individual has been authorized to
give any information or to make TRICO MARINE
any representations not in, or SERVICES, INC.
incorporated in, this Prospectus,
in connection with the Exchange Offer for All Outstanding
Offer covered by this Prospectus. 8 1/2% Senior Notes Due 2005, Series C
If given or made, such information in Exchange for
or representations must not be 8 1/2% Senior Notes Due 2005, Series D
relied upon as having been
authorized by the Company. This
Prospectus does not constitute an
offer to sell, or a solicitation
of an offer to buy, any security
other than the New Notes offered
hereby, nor does it constitute an
offer to sell or a solicitation of
an offer to buy any of the New PROSPECTUS
Notes to anyone or by anyone in
any jurisdiction where, or to any
person to whom, it would be
unlawful to make such an offer or
solicitation. Neither the
delivery of this Prospectus nor
any sale made hereunder shall,
under any circumstances, create an
implication that there has not _________ , 1998
been a change in the information
set forth in this Prospectus or
incorporated by reference herein
or in the affairs of the Company
since the date hereof.
_______________
TABLE OF CONTENTS
Page
Available Information i
Incorporation of Certain Documents
by Reference i
Summary 1
Risk Factors 7
The Acquisition 13
Use of Proceeds 13
Capitalization 14
Selected Consolidated Financial
and
Operating Data 15
Exchange Offer 17
Description of the Notes 24
Legal Matters 48
Experts 48
- 7 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify its directors and officers in a variety of
circumstances, which may include liabilities under the Securities Act of 1933,
as amended (the "Securities Act"). In addition, the Registrant's bylaws
provide for the indemnification of directors and officers against expenses and
liabilities incurred in connection with defending actions brought against them
for negligence or misconduct in their official capacities. The Registrant
also has indemnity agreements with each of its directors that provide for
indemnification of such directors. The Registrant has purchased insurance
permitted by the Delaware General Corporation Law on behalf of directors and
officers, which may cover liabilities under the Securities Act.
Item 21. Exhibits and Financial Statement Schedules.
The following is a list of all exhibits filed as part of this
Registration Statement.
Exhibit
Number Description of Exhibits
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. as to the legality of the Notes.
12 Statement regarding Ratio of Earnings to Fixed Charges.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of KPMG as Gerd Leira.
23.3 Consent of Deloitte & Touche as Roar Skuland.
23.4 Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
24.1 Power of Attorney (included in Signature Page to the Registration
Statement).
Statement of Eligibility of Texas Commerce Bank National
25.1 Association.
Form of Letter of Transmittal.
99.1
Form of Notice of Guaranteed Delivery.
99.2
Item 22. Undertakings.
The Registrant hereby undertakes the following:
(a) For purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions described under
Item 20 or otherwise, each of the registrants has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by any of the registrants of
expenses incurred or paid by a director, officer, or controlling person of
such registrant in the successful defense of any action, suit, or proceeding)
is asserted by such director, officer, or controlling person in connection
with the securities being registered, the registrants will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(c) Each of the undersigned registrants hereby undertakes to respond
to requests for information that is incorporated by reference into the
prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one
business day of receipt of such request, and to send the incorporated document
by first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(d) Each of the undersigned registrants hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houma, State of
Louisiana, on January _____, 1998.
TRICO MARINE SERVICES, INC.
By:
Thomas E. Fairley,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Thomas E. Fairley, Ronald O. Palmer
or Victor M. Perez, or any one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-
fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Thomas E. Fairley Director, President and January _____, 1998
Chief Executive Officer
Ronald O. Palmer Chairman of the Board January _____, 1998
Victor M. Perez Vice President, Chief January _____, 1998
Financial Officer and
Treasurer (Principal
Financial Officer)
Kenneth W. Bourgeois Vice President and January _____, 1998
Controller (Principal
Accounting Officer)
Benjamin F. Bailar Director January _____, 1998
H. K. Acord Director January _____, 1998
Garth H. Greimann Director January _____, 1998
Edward C. Hutcheson, Jr. Director January _____, 1998
S-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houma, State of
Louisiana, on January 9, 1998.
TRICO MARINE SERVICES, INC.
By: /s/ Thomas E.Fairley
Thomas E.Fairley,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Thomas E. Fairley, Ronald O. Palmer or Victor M. Perez, or any
one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Thomas E. Fairley Director, President and January 9, 1998
Thomas E. Fairley Chief Executive Officer
/s/ Ronald O. Palmer Chairman of the Board January 9, 1998
Ronald O. Palmer
/s/ Victor M. Perez Vice President, Chief January 9, 1998
Victor M. Perez Financial Officer and
Treasurer (Principal
Financial Officer)
Vice President and January 9, 1998
Kenneth W. Bourgeois Controller (Principal
Accounting Officer)
Director January 9, 1998
Benjamin F. Bailar
/s/ H. K. Acord Director January 9, 1998
H. K. Acord
/s/ Garth H. Greimann Director January 9, 1998
Garth H. Greimann
/s/ Edward C. Hutcheson, Director January 9, 1998
Jr.
Edward C. Hutcheson, Jr.
S-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houma, State of
Louisiana, on January _____, 1998.
TRICO MARINE ASSETS, INC.
By:
Thomas E.Fairley,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Thomas E. Fairley, Ronald O. Palmer
or Victor M. Perez, or any one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-
fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
President and Chief January _____, 1998
Thomas E. Fairley Executive Officer
Director and Executive January _____, 1998
Ronald O. Palmer Vice President
Vice President, Chief January _____, 1998
Victor M. Perez Financial Officer and
Treasurer (Principal
Financial Officer)
Vice President and January _____, 1998
Kenneth W. Bourgeois Controller (Principal
Accounting Officer)
S-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houma, State of
Louisiana, on January 9, 1998.
TRICO MARINE ASSETS, INC.
By: /s/ Thomas E. Fairley
Thomas E. Fairley,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Thomas E. Fairley, Ronald O. Palmer or Victor M. Perez, or any
one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Thomas E. Fairley President and Chief January 9, 1998
Thomas E. Fairley Executive Officer
/s/ Ronald O. Palmer Director and Executive January 9, 1998
Ronald O. Palmer Vice President
/s/ Victor M. Perez Vice President, Chief January 9, 1998
Victor M. Perez Financial Officer and
Treasurer (Principal
Financial Officer)
/s/ Kenneth W. Bourgeois Vice President and January 9, 1998
Kenneth W. Bourgeois Controller (Principal
Accounting Officer)
S-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houma, State of
Louisiana, on January _____, 1998.
TRICO MARINE OPERATORS, INC.
By:
Thomas E. Fairley,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Thomas E. Fairley, Ronald O. Palmer
or Victor M. Perez, or any one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-
fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Director, President and January _____, 1998
Thomas E. Fairley Chief Executive Officer
Executive Vice President January _____, 1998
Ronald O. Palmer
Vice President, Chief January _____, 1998
Victor M. Perez Financial Officer and
Treasurer (Principal
Financial Officer)
Vice President and January _____, 1998
Kenneth W. Bourgeois Controller (Principal
Accounting Officer)
S-1
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houma, State of
Louisiana, on January 9, 1998.
TRICO MARINE OPERATORS, INC.
By: /s/ Thomas E. Fairley
Thomas E. Fairley,
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Thomas E. Fairley, Ronald O. Palmer or Victor M. Perez, or any
one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Thomas E. Fairley Director, President and January 9, 1998
Thomas E. Fairley Chief Executive Officer
/s/ Ronald O. Palmer Executive Vice President January 9, 1998
Ronald O. Palmer
/s/ Victor M. Perez Vice President, Chief January 9, 1998
Victor M. Perez Financial Officer and
Treasurer (Principal
Financial Officer)
Vice President and January 9, 1998
Kenneth W. Bourgeois Controller (Principal
Accounting Officer)
S-1
Jones, Walker EXHIBIT 5
Waechter, Poitevent
Carrere & Denegre, L.L.P.
January 9, 1998
Trico Marine Services, Inc.
250 North American Court
Houma, Louisiana 70363
Re: Trico Marine Services, Inc.
Registration Statement on Form S-4
$70,000,000 aggregate principal amount of
8 1/2% Series D Senior Notes due 2005 and Guarantees
Gentlemen:
We have acted as your counsel in connection with the
preparation of the registration statement on Form S-4 (the
"Registration Statement") filed by Trico Marine Services, Inc.
(the "Company"), Trico Marine Assets, Inc. ("Assets") and Trico
Marine Operators, Inc. ("Operators," and together with Assets,
the "Guarantors") under the Securities Act of 1933, as amended,
with the Securities and Exchange Commission (the "Commission") on
the date hereof with respect to the Company's offer to exchange
(the "Exchange Offer") up to $70 million aggregate principal
amount of the Company's 8 1/2% Series D Senior Notes due 2005 (the
"New Notes") for a like principal amount of the Company's 8 1/2%
Series C Senior Notes due 2005 (the "Old Notes"). The Guarantors
will guarantee (the "Guarantees") the New Notes on a senior
unsecured basis. The New Notes and Guarantees will be offered
under an Indenture dated as of November 14, 1997, by and among
the Company, the Guarantors and Texas Commerce Bank National
Association, as trustee (the "Indenture").
In so acting, we have examined originals, or photostatic or
certified copies, of the Indenture, the form of the New Notes and
such records of the Company, certificates of officers of the
Company and of public officials, and such other documents as we
have deemed relevant. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such
documents.
Based upon the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
1. When (i) the New Notes upon consummation of the
Exchange Offer have been duly executed by the Company and
authenticated by the trustee therefor in accordance with
the terms of the Indenture and (ii) the New Notes issuable
upon consummation of the Exchange Offer have been duly
delivered against receipt of Old Notes surrendered in
exchange therefor, the New Notes issuable upon consummation
of the Exchange Offer will constitute the legal, valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to any
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar law affecting the rights of
creditors generally and general principles of equity and
will be entitled to the benefits of the Indenture.
2. When (i) the New Notes upon consummation of the
Exchange Offer have been duly executed by the Company and
authenticated by the trustee therefor in accordance with the
terms of the Indenture and (ii) the New Notes issuable upon
consummation of the Exchange Offer have been duly delivered
against receipt of Old Notes surrendered in exchange
therefor, the Guarantees of the New Notes issuable by each
Guarantor upon consummation of the Exchange Offer will
constitute the legal, valid and binding obligations of such
Guarantor, enforceable against it in accordance with their
terms, subject to any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar law
affecting the rights of creditors generally and general
principles of equity and will be entitled to the benefits of
the Indenture.
The foregoing opinion is limited in all respects to the laws
of the State of New York and federal laws.
We consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to us in the
prospectus included therein under the caption "Legal Matters."
In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the general rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/S/ JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE, L.L.P.
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE, L.L.P.
TRICO MARINE SERVICES, INC.
EXHIBIT 12
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS
TO FIXED CHARGES
(In thousands, except ratios)
<TABLE>
<CAPTION>
Two months Nine months
ended ended
December 31, Year Ended December 31, September 30,
1993 1994 1995(1) 1996 1996 1997
------------- --------- --------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before $ 846 $ 486 $(1,299) $ 10,891 $ 364 $ 24,446
extraordinary item
Income tax expense (benefit) 564 226 (670) 5,814 2,788 13,164
------------- --------- --------- -------- ------- --------
Earnings from continuing
operations before income
taxes and extraordinary item $ 1,410 $ 712 $(1,969) $ 16,705 $ 7,988 $ 37,610
============= ========= ========= ======== ======= ========
Fixed charges
Interest on long-term debt $ 620 $ 3,767 $ 3,850 $ 2,282 $ 1,710 $ 3,677
Amortization of deferred
financing costs 60 344 381 197 217 144
------------- --------- --------- -------- ------- --------
Total fixed $ 680 $ 4,111 $ 4,231 $ 2,479 $ 1,138 $ 3,821
charges ============= ========= ========= ======== ======= ========
Earnings from continuing
operations before income $ 2,090 $ 4,823 $ 2,262 $ 19,184 $ 9,915 $ 41,431
taxes and fixed charges ============= ========= ========= ======== ======= ========
Ratio of earnings to fixed
charges 3.1 1.2 0.5 7.7 5.1 10.8
============= ========= ========= ======== ======= ========
(1) Earnings were insufficient to cover fixed charges, and fixed
charges exceeded earnings by approximately $2.0 million.
</TABLE>
STATEMENT OF COMPUTATION OF PRO FORMA
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands except ratios)
<TABLE>
<CAPTION>
Nine Months
Year Ended ended
December 31, September 30,
1996 1997
------------ ------------
<S> <C> <C>
Income before extraordinary item $ 5,066 $ 37,388
Income tax expense (benefit) 3,506 17,292
Earnings from continuing operations before income
taxes and extraordinary item $ 8,572 $ 54,680
============ ============
Fixed charges
Interest on long-term debt $ 19,162 $ 19,967
Amortization of deferred financing costs 263 144
------------ ------------
Total fixed changes $ 19,425 $ 20,111
Earnings from continuing operations before income
taxes and fixed charged $ 27,997 $ 74,791
============ ============
Ratio of earnings to fixed charges 1.4 3.7
</TABLE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Trico Marine Services, Inc. on Form S-4 of our reports dated February 12,
1997, except for the third paragraph of Note 15 to which the date is June 9,
1997, on our audits of the consolidated financial statements and financial
statement schedule of Trico Marine Services, Inc. as of December 31, 1996 and
1995 and for the years ended December 31, 1996, 1995 and 1994, appearing in
the Company's Form 8-K/A dated December 2, 1997. We also consent to the
reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
New Orleans, Louisiana
January 8, 1998
The Board of Directors
Saevik Supply ASA
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this report on Form S-4 of our
report dated March 6, 1997, with respect to the consolidated balance sheet of
Saevik Supply ASA and subsidiaries as of December 31, 1996 and the related
statements of earnings and cash flows for the year then ended, appearing in the
Form 8-K/A of Trico Marine Services, Inc. dated December 2, 1997.
We also consent to the reference to our firm under the caption "Experts".
Aalesund, Norway
January 8, 1998
KPMG as
/s/ Gerd Leira
Gerd Leira
State Authorised Public Accountant (Norway)
[Deloitte & Touche Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this report on Form S-4 of our
report dated November 4, 1997, with respect to the statements of assets
acquired and liabilities assumed for the fleet of vessels acquired by Saevik
Supply ASA from Viking Supply Ships AS (Viking Vessels) for the year ended
December 31, 1996 and the statement of revenue less direct operating expenses
for the years ended December 31, 1996, 1995 and 1994, appearing in the Form
8-K/A of Trico Marine Services, Inc. dated December 2, 1997.
We also consent to the reference to our firm under the caption "Experts".
DELOITTE & TOUCHE
Norway, December 19, 1997
/s/ Roar Skuland
Roar Skuland
State Authorized Public Accountant Norway
=============================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____
____________________
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer Identification Number)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip code)
Lee Boocker, 712 Main Street, 26th Floor
Houston, Texas 77002 (713) 216-2448
(Name, address and telephone number of agent for service)
TRICO MARINE SERVICES, INC.
TRICO MARINE ASSETS, INC.
TRICO MARINE OPERATORS, INC.
(Exact name of obligor as specified in its charter)
Delaware 72-1252405
Delaware 72-1252404
Louisiana 72-1096124
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2401 Fountain View, Suite 626, Houston, Texas 77057
(Address of principal executive offices) (Zip code)
8 1/2% Senior Notes Due 2005
Series D
(Title of indenture securities)
=============================================
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee. (See Note on Page 7.)
Item 3. Voting Securities of the trustee.
Furnish the following information as to each class of voting
securities of the trustee.
Col. A Col. B
Title of class Amount outstanding
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 4. (Continued)
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under any
such other indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued under such
other indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 5. Interlocking directorates and similar relationships with obligor or
underwriters.
If the trustee or any of the directors or executive officer of the
trustee is a director, officer, partner, employee, appointee, or representative
of the obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given in
Name of owner Title of class beneficially Col. C
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each such underwriter.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given in
Name of owner Title of class beneficially Col. C
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to the securities of the obligor
owned beneficially or held as collateral security for obligations in default by
the trustee.
Col. A Col. B Col. C Col. D
Amount owned
Whether the beneficially or Percent of
securities held as collateral class
are voting security for represented by
or nonvoting obligations in amount given
Title of class securities default in Col. C
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or Percent of
held as collateral class
Title of issuer security for represented by
and Amount obligations in amount given
Title of class outstanding default by trustee in Col. C
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10% or more of the voting securities of the obligor or (2)
is an affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or Percent of
held as collateral class
Title of issuer security for represented by
and Amount obligations in amount given
Title of class outstanding default by trustee in Col. C
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50% or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50% or more of the voting securities of the obligor, furnish the
following information as to each class of securities or such person any of which
are so owned or held by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or Percent of
held as collateral class
Title of issuer security for represented by
and Amount obligations in amount given
Title of class outstanding default by trustee in Col. C
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
Col. A Col. B Col. C
Nature of Amount
Indebtedness Outstanding Date Due
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
There is not, nor has there been, a default with respect to the securities
under this indenture. (See Note on Page 7.)
Item 13. (Continued)
(b) If the trustee is a trustee under another indenture under which any
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
There has not been a default under any such indenture or series. (See Note
on Page 7.)
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee now in
effect.
# 2. A copy of the certificate of authority of the trustee to
commence business.
* 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors
of the Federal Reserve System under date of January 21, 1948.
+ 4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of United States institutional trustees required
by Section 321(b) of the Act.
( 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
8. Not applicable.
9. Not applicable.
_______________________
Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as exhibits to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as exhibits to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as exhibits to the Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as exhibits to the Form S-3 File No. 33-65055.
( Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as exhibits to the Form S-3 File No. 333-34045.
____________________
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Houston, and State of Texas, on the ___ day of December, 1997.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Trustee)
By: /s/ Mauri J. Cowen
Mauri J. Cowen
Vice President and Trust Officer
TRICO MARINE SERVICES, INC.
LETTER OF TRANSMITTAL
FOR
OFFER TO EXCHANGE
8 1/2% SENIOR NOTES DUE 2005, SERIES D
FOR ALL OUTSTANDING
8 1/2% SENIOR NOTES DUE 2005, SERIES C
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON ________ ___, 1998, UNLESS EXTENDED BY
TRICO MARINE SERVICES, INC. (THE "EXPIRATION DATE").
THE EXCHANGE AGENT
FOR THE EXCHANGE OFFER IS:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
For Delivery by Mail: For Overnight Delivery Only:
Texas Commerce Bank National Texas Commerce Bank National
Association Association
Corporate Trust Services Corporate Trust Services
P. O. Box 2320 1201 Main Street, 18th Floor
Dallas, Texas 75221-2320 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
By Facsimile Transmission (for eligible institutions only):
(214) 672-5746
To Confirm Receipt:
(214) 672-5125
or
(800) 275-2048
(Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand, or by overnight delivery
service.)
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION
TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY. THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned hereby acknowledges receipt and review of the
Prospectus dated _________ ___, 1998 (the "Prospectus") of Trico Marine
Services, Inc., a Delaware corporation (the "Company"), Trico Marine
Assets, Inc., a Delaware corporation ("Assets"), and Trico Marine
Operators, Inc., a Louisiana corporation ("Operators," and together with
Assets, the "Guarantors"), and this Letter of Transmittal (the "Letter
of Transmittal"), which together describe the Company's offer (the
"Exchange Offer") to exchange its 8 1/2% Senior Notes due 2005, Series
D (the "New Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for a like principal amount
of its issued and outstanding 8 1/2% Senior Notes due 2005, Series C (the
"Old Notes"). Capitalized terms used but not defined herein have the
respective meaning given to them in the Prospectus.
The Company reserves the right, at any time or from time to time,
to extend the Exchange Offer at its discretion, in which event the term
"Expiration Date" shall mean the latest date to which the Exchange Offer
is extended. The Company shall notify the Exchange Agent and each
registered holder of the Old Notes of any extension by oral or written
notice prior to 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date.
This Letter of Transmittal is to be used by a holder of Old Notes
if original Old Notes, if available, are to be forwarded herewith. An
Agent's Message (as defined in the next sentence) is to be used if
delivery of Old Notes is to be made by book-entry transfer to the
account maintained by the Exchange Agent at the Depository Trust Company
(the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in the Prospectus under the caption "The Exchange Offer -- Terms
of the Exchange Offer -- Procedures for Tendering Old Notes." The term
"Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility and received by the Exchange Agent and forming a part
of the confirmation of a book-entry transfer ("Book-Entry
Confirmation"), which states that the Book-Entry Transfer Facility has
received an express acknowledgment from a participant tendering Old
Notes which are the subject of such Book-Entry Confirmation and that
such participant has received and agrees to be bound by the terms of the
Letter of Transmittal and that the Company may enforce such agreement
against such participant. Holders of Old Notes whose Old Notes are not
immediately available, or who are unable to deliver their Old Notes and
all other documents required by this Letter of Transmittal to the
Exchange Agent on or prior to the Expiration Date, or who are unable to
complete the procedure for book-entry transfer on a timely basis, must
tender their Old Notes according to the guaranteed delivery procedures
set forth in the Prospectus under the caption "The Exchange Offer --
Terms of the Exchange Offer -- Guaranteed Delivery Procedures." See
Instruction 2. Delivery of documents to the Book-Entry Transfer
Facility does not constitute delivery to the Exchange Agent.
The term "holder" with respect to the Exchange Offer means any
person in whose name Old Notes are registered on the books of the
Company or any other person who has obtained a properly completed bond
power from the registered holder. The undersigned has completed,
executed and delivered this Letter of Transmittal to indicate the action
the undersigned desires to take with respect to the Exchange Offer.
Holders who wish to tender their Old Notes must complete this Letter of
Transmittal in its entirety.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE
FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL
COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED
TO THE EXCHANGE AGENT.
List below the Old Notes to which this Letter of Transmittal
relates. If the space below is inadequate, list the registered numbers
and principal amount on a separate signed schedule and affix the list to
this Letter of Transmittal.
DESCRIPTION OF OLD NOTES TENDERED
Name(s) and Address(es) of Registered Owner(s) as
(it/they) appear(s)on the 8 1/2% Senior Notes
due 2005, Series C
Certificate Aggregate Principal
Numbers Principal Amount
of Old Notes* Amount Tendered
Represented by
Old Notes
Total Principal**
Amount of Old
Notes Tendered
(If additional space is required, attach a continuation sheet in substantially
the above form.)
* Need not be completed by book-entry holders.
** Unless otherwise indicated, any tendering holder of Old Notes will
be deemed to have tendered the entire aggregate principal amount
represented by such Old Notes. All tenders must be in integral
multiples of $1,000.
METHOD OF DELIVERY
* Check here if tendered Old Notes are enclosed herewith.
* Check here if tendered Old Notes are being delivered by book-entry
transfer made to an account
maintained by the Exchange Agent with a Book-Entry Transfer
Facility and complete the following:
Name of Tendering Institution:..............................
Account Number: Transaction Code Number:
* Check here if tendered Old Notes are being delivered pursuant to a
Notice of Guaranteed Delivery
and complete the following:
Name(s) of Registered Holder(s):............................
Date of Execution of Notice of Guaranteed Delivery:
Window Ticket Number (if available):
Name of Eligible Institution that guaranteed delivery:
Account Number (If delivered by book-entry transfer): ....
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
1. The undersigned hereby tenders to the Company the Old Notes
described above pursuant to the Company's offer of $1,000 principal
amount of registered New Notes, in exchange for each $1,000 principal
amount of the Old Notes, upon the terms and subject to the conditions
contained in the Prospectus, receipt of which is hereby acknowledged,
and this Letter of Transmittal.
2. The undersigned hereby represents and warrants that it has full
authority to tender, exchange, assign and transfer the Old Notes
described above. The undersigned will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete the exchange,
assignment and transfer of Old Notes.
3. The undersigned understands that the tender of the Old Notes
pursuant to all of the procedures set forth in the Prospectus will
constitute an agreement between the undersigned and the Company as to
the terms and conditions set forth in the Prospectus.
4. The undersigned acknowledge(s) that this Exchange Offer is
being made in reliance upon interpretations contained in no-action
letters issued to third parties by the staff of the Securities and
Exchange Commission (the "SEC"), including Exxon Capital Holdings
Corporation, SEC No-Action (available April 13, 1989), Morgan Stanley &
Co. Inc., SEC No-Action Letter (available June 5, 1991) (the "Morgan
Stanley Letter") and Mary Kay Cosmetics, Inc., SEC No-Action Letter
(available June 5, 1991), that the New Notes issued in exchange for the
Old Notes pursuant to the Exchange Offer may be offered for resale,
resold and otherwise transferred by holders thereof (other than a
broker-dealer who purchased Old Notes exchanged for such New Notes
directly from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act and any such holder that is
an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act), without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such New Notes
are acquired in the ordinary course of such holders' business and such
holders are not participating in, and have no arrangement with any
person to participate in, the distribution of such New Notes.
5. Unless the box under the heading "Special Registration
Instructions" is checked, the undersigned hereby represents and warrants
that:
(i) the New Notes acquired pursuant to the Exchange Offer are
being obtained in the ordinary course of business of the
holder;
(ii) the holder is not engaging in and does not intend to engage
in a distribution of such New Notes;
(iii)the holder does not have an arrangement or understanding with
any person to participate in the distribution of such New
Notes; and
(iv) the holder is not an "affiliate," as such term is defined
under Rule 405 promulgated under the Securities Act, of the
Company.
6. The undersigned may, if, and only if, unable to make all of the
representations and warranties contained in Item 5 above, elect to have
its Old Notes registered in the shelf registration statement described
in the registration rights agreement (the "Registration Rights
Agreement") dated as of November 14, 1997 among the Company, the
Guarantors and the Initial Purchasers. Such election may be made by
checking the box under "Special Registration Instructions" on page 6.
By making such election, the undersigned agrees, as a holder of Transfer
Restricted Securities participating in a shelf registration, to
indemnify and hold harmless the Company, each of the Guarantors and each
person, if any, who controls the Company or any of the Guarantors within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and each of their respective officers, directors, employees, partners,
representatives and agents 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 Securities 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; but only with
respect to information relating to the undersigned furnished in writing
by or on behalf of the undersigned expressly for use in the Registration
Statement, the Prospectus or any amendments or supplements thereto. Any
such indemnification shall be governed by the terms and subject to the
conditions set forth in the Registration Rights Agreement, including,
without limitation, the provisions regarding notice, retention of
counsel, contribution and payment of expenses set forth therein. The
above summary of the indemnification provision of the Registration
Rights Agreement is not intended to be exhaustive and is qualified in
its entirety by the Registration Rights Agreement.
7. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in,
a distribution of New Notes. If the undersigned is a broker-dealer that
will receive New Notes for its own account in exchange for Old Notes
that were acquired as a result of market-making activities or other
trading activities, it acknowledges that it will deliver a prospectus in
connection with any resale of such New Notes; however, by so
acknowledging and delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. If the undersigned is a broker-dealer and Old Notes
held for its own account were not acquired as a result of market-making
or other trading activities, such Old Notes cannot be exchanged pursuant
to the Exchange Offer.
8. Any obligation of the undersigned hereunder shall be binding
upon the successors, assigns, executors, administrators, trustees in
bankruptcy and legal and personal representatives of the undersigned.
9. Unless otherwise indicated herein under "Special Issuance
Instructions," please issue the certificates for the New Notes in the
name of the undersigned.
SPECIAL ISSUANCE INSTRUCTION SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6) (SEE INSTRUCTIONS 5 AND 6)
To be completed only (i) if Old To be completed ONLY if the
Notes in a principal amount not New Notes are to be issued or
tendered, or New Notes issued in sent to someone other than the
exchange for Old Notes accepted for undersigned or to the undersigned
exchange, are to be issued in the name at an address other than as
of someone other than the undersigned, indicated above.
or (ii) if Old Notes tendered by book-
entry transfer which are not exchanged * Mail * Issue (check
are to be returned by credit to an appropriate boxes)
account maintained at the Book-Entry certificates to:
Transfer Facility. Issue New Notes
and/or Old Notes to: Name ............................
(Type or Print)
Name..................................
(Type or Print) Address..........................
Address............................... .................................
(Zip Code)
......................................
(Zip Code) (Tax Identification or Social
Security Number)
(Tax Identification or Social Security
Number)
(Complete Substitute Form W-9)
Credit unexchanged Old Notes delivered
by book-entry transfer to the Book-
Entry Transfer Facility set forth
below:
Book-Entry Transfer Facility Account
Number:
......................................
SPECIAL REGISTRATION INSTRUCTIONS
To be completed ONLY if (i) the undersigned satisfies the conditions
set forth in Item 6 above, (ii) the under-signed elects to register its Old
Notes in the shelf registration statement described in the Registration
Rights Agreement and (iii) the undersigned agrees to indemnify certain
entities and individuals as set forth in Item 6 above. (See Item 6).
* By checking this box the undersigned hereby (i) represents that it is
unable to make all of the representations and warranties set forth in
Item 5 above, (ii) elects to have its Old Notes registered pursuant to
the shelf registration statement described in the Registration Rights
Agreement and (iii) agrees to indemnify certain entities and
individuals identified in, and to the extent provided in, Item 6
above.
SPECIAL BROKER-DEALER INSTRUCTIONS
* Check here if you are a broker-dealer and wish to receive 10
additional copies of the Prospectus and
10 copies of any amendments or supplements thereto.
Name ..............................................................
Address ..............................................................
..............................................................
(Zip Code)
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 on Last Page)
..............................................................................
..............................................................................
(Signature(s) of Registered Holders of Old Notes)
Dated .........................................., 1997
(The above lines must be signed by the registered holder(s) of Old Notes as
name(s) appear(s) on the Old Notes or on a security position listing, or by
person(s) authorized to become registered holder(s) by a properly completed
bond power from the registered holder(s), a copy of which must be
transmitted with this Letter of Transmittal. If Old Notes to which this
Letter of Transmittal relate are held of record by two or more joint
holders, then all such holders must sign this Letter of Transmittal. If
signature is by a trustee, executor, administrator, guardian, attorney-in-
fact, officer of a corporation or other person acting in a fiduciary or
representative capacity, then such person must (i) set forth his or her full
title below and (ii) unless waived by the Company, submit evidence
satisfactory to the Company of such person's authority so to act. See
Instruction 5 regarding completion of this Letter of Transmittal, printed
below.)
Name(s) .................................................................
(Please Type or Print)
Capacity: ...............................................................
Address: ................................................................
................................................................
(Include Zip Code)
Area Code and Telephone Number: ........................................
MEDALLION SIGNATURE GUARANTEE
(If Required by Instruction 5)
Certain signatures must be Guaranteed by an Eligible Institution.
Signature(s) Guaranteed by an Eligible Institution: ..........................
(Authorized Signature)
..............................................................................
(Title)
..............................................................................
(Name of Firm)
..............................................................................
(Address, Include Zip Code)
..............................................................................
(Area Code and Telephone Number)
Dated:................................................................, 1997
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Old Notes or Book-Entry
Confirmations.
All physically delivered Old Notes or any confirmation of a
book-entry transfer to the Exchange Agent's account at the Book-Entry
Transfer Facility of Old Notes tendered by book-entry transfer (a
"Book-Entry Confirmation"), as well as a properly completed and duly
executed copy of this Letter of Transmittal or Agent's Message or
facsimile hereof, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set
forth herein prior to 5:00 p.m., New York City time, on the Expiration
Date. The method of delivery of the tendered Old Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent is at
the election and risk of the holder and, except as otherwise provided
below, the delivery will be deemed made only when actually received or
confirmed by the Exchange Agent. If such delivery is by mail, it is
recommended that registered mail, properly insured, with return receipt
requested, be used. Instead of delivery by mail, it is recommended that
the holder use an overnight or hand delivery service. In all cases,
sufficient time should be allowed to assure delivery to the Exchange
Agent before the Expiration Date. No Letter of Transmittal or Old Notes
should be sent to the Company.
2. Guaranteed Delivery Procedures.
Holders who wish to tender their Old Notes and whose Old Notes are
not immediately available or who cannot deliver their Old Notes, this
Letter of Transmittal or any other documents required hereby to the
Exchange Agent prior to the Expiration Date, or who cannot complete the
procedure for book-entry transfer on a timely basis and deliver an
Agent's Message, must tender their Old Notes according to the guaranteed
delivery procedures set forth in the Prospectus. Pursuant to such
procedures a tender may be effected if the Exchange Agent has received
at its office, on or prior to the Expiration Date, a letter, telegram or
facsimile transmission from an Eligible Institution setting forth the
name and address of the tendering holder, the name(s) in which the Old
Notes are registered and the certificate number(s) of the Old Notes to
be tendered, and stating that the tender is being made thereby and
guaranteeing that, within three Nasdaq National Market trading days
after the date of execution of such letter, telegram or facsimile
transmission by the Eligible Institution, such Old Notes, in proper form
for transfer (or a confirmation of book-entry transfer of such Old Notes
into the Exchange Agent's account at DTC), will be delivered by such
Eligible Institution together with a properly completed and duly
executed Letter of Transmittal (and any other required documents).
Unless Old Notes being tendered by the above-described method are
deposited with the Exchange Agent within the time period set forth above
(accompanied or preceded by a properly completed Letter of Transmittal
and any other required documents), the Company may, at its option,
reject the tender.
Any holder of Old Notes who wishes to tender Old Notes pursuant to
the guaranteed delivery procedures described above must ensure that the
Exchange Agent receives the Notice of Guaranteed Delivery prior to 5:00
p.m., New York City time, on the Expiration Date. Upon request of the
Exchange Agent, a Notice of Guaranteed Delivery will be sent to holders
who wish to tender their Old Notes according to the guaranteed delivery
procedures set forth above. See "The Exchange Offer -- Terms of the
Exchange Offer -- Guaranteed Delivery Procedures" section of the
Prospectus.
3. Tender by Holder.
Only a holder of Old Notes may tender such Old Notes in the
Exchange Offer. Any beneficial holder of Old Notes who is not the
registered holder and who wishes to tender should arrange with the
registered holder to execute and deliver this Letter of Transmittal on
his behalf or must, prior to completing and executing this Letter of
Transmittal and delivering his Old Notes, either make appropriate
arrangements to register ownership of the Old Notes in such holder's
name or obtain a properly completed bond power from the registered
holder.
4. Partial Tenders.
Tenders of Old Notes will be accepted only in integral multiples
of $1,000. If less than the entire principal amount of any Old Notes is
tendered, the tendering holder should fill in the principal amount
tendered in the third column of the box entitled "Description of Old
Notes Tendered" above. The entire principal amount of Old Notes
delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated. If the entire principal amount of all Old
Notes is not tendered, then Old Notes for the principal amount of Old
Notes not tendered and New Notes issued in exchange for any Old Notes
accepted will be sent to the holder at his or her registered address,
unless a different address is provided in the appropriate box on this
Letter of Transmittal, promptly after the Old Notes are accepted for
exchange.
5. Signatures on this Letter of Transmittal; Bond Powers and
Endorsements; Guarantee of Signatures.
If this Letter of Transmittal (or facsimile hereof) is signed by
the record holder(s) of the Old Notes tendered hereby, the signature
must correspond with the name(s) as written on the face of the Old Notes
without alteration, enlargement or any change whatsoever. If this
Letter of Transmittal (or facsimile hereof) is signed by a participant
in the Book-Entry Transfer Facility, the signature must correspond with
the name as it appears on the security position listing as the holder of
the Old Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by
the registered holder or holders of Old Notes listed and tendered hereby
and the New Notes issued in exchange therefor are to be issued (or any
untendered principal amount of Old Notes is to be reissued) to the
registered holder, the said holder need not and should not endorse any
tendered Old Notes, nor provide a separate bond power. In any other
case, such holder must either properly endorse the Old Notes tendered or
transmit a properly completed separate bond power with this Letter of
Transmittal, with the signatures on the endorsement or bond power
guaranteed by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a
person other than the registered holder or holders of any Old Notes
listed, such Old Notes must be endorsed or accompanied by appropriate
bond powers, in each case signed as the name of the registered holder or
holders appears on the Old Notes.
If this Letter of Transmittal (or facsimile hereof) or any Old
Notes or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting
in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Company, evidence
satisfactory to the Company of their authority to act must be submitted
with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by
this Instruction 5 must be guaranteed by an Eligible Institution.
No signature guarantee is required if (i) this Letter of
Transmittal (or facsimile hereof) is signed by the registered holder(s)
of the Old Notes tendered herein (or by a participant in the Book-Entry
Transfer Facility whose name appears on a security position listing as
the owner of the tendered Old Notes) and the New Notes are to be issued
directly to such registered holder(s) (or, if signed by a participant in
the Book-Entry Transfer Facility, deposited to such participant's
account at such Book-Entry Transfer Facility) and neither the box
entitled "Special Delivery Instructions" nor the box entitled "Special
Issuance Instructions" has been completed, or (ii) such Old Notes are
tendered for the account of an Eligible Institution. In all other
cases, all signatures on this Letter of Transmittal (or facsimile
hereof) must be guaranteed by an Eligible Institution.
6. Special Issuance and Delivery Instructions.
Tendering holders should indicate, in the applicable box or boxes,
the name and address (or account at the Book-Entry Transfer Facility) to
which New Notes or substitute Old Notes for principal amounts not
tendered or not accepted for exchange are to be issued or sent, if
different from the name and address of the person signing this Letter of
Transmittal. In the case of issuance in a different name, the taxpayer
identification or social security number of the person named must also
be indicated.
7. Tax identification Number.
Federal income tax law requires that a holder of any Old Notes
which are accepted for exchange must provide the Company (as payor) with
its correct taxpayer identification number ("TIN"), which, in the case
of a holder who is an individual is his or her social security number.
If the Company is not provided with the correct TIN, the holder may be
subject to a $50 penalty imposed by Internal Revenue Service. (If
withholding results in an over-payment of taxes, a refund may be
obtained.) Certain holders (including, among others, all corporations
and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. See the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form
W-9" for additional instructions.
To prevent backup withholding, each tendering holder must provide
such holder's correct TIN by completing the Substitute Form W-9 set
forth herein, certifying that the TIN provided is correct (or that such
holder is awaiting a TIN), and that (i) the holder has not been notified
by the Internal Revenue Service that such holder is subject to backup
withholding as a result of failure to report all interest or dividends
or (ii) the Internal Revenue Service has notified the holder that such
holder is no longer subject to backup withholding. If the Old Notes are
registered in more than one name or are not in the name of the actual
owner, see the enclosed "Guidelines for Certification of Taxpayer
Identification Number of Substitute Form W-9" for information on which
TIN to report.
The Company reserves the right in its sole discretion to take
whatever steps are necessary to comply with the Company's obligations
regarding backup withholding.
8. Validity of Tenders.
All questions as to the validity, form, eligibility (including
time of receipt), acceptance, and withdrawal of tendered Old Notes will
be determined by the Company, in its sole discretion, which
determination will be final and binding. The Company reserves the
absolute right to reject any or all tenders not in proper form or the
acceptance for exchange of which may, in the opinion of counsel for the
Company, be unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of any Old Notes. The Company's
interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final
and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured
within such time as the Company shall determine. Although the Company
intends to notify holders of defects or irregularities with respect to
tenders of Old Notes, neither the Company, the Exchange Agent, nor any
other person shall be under any duty to give notification of any defects
or irregularities in tenders or incur any liability for failure to give
such notification. Tenders of Old Notes will not be deemed to have been
made until such defects or irregularities have been cured or waived.
Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering
holders, unless otherwise provided in the Letter of Transmittal, as soon
as practicable following the Expiration Date.
9. Waiver of Conditions.
The Company reserves the absolute right to waive, in whole or
part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
10. No Conditional Tender.
No alternative, conditional, irregular or contingent tender of Old
Notes on transmittal of this Letter of Transmittal will be accepted.
11. Mutilated, Lost, Stolen or Destroyed Old Notes.
Any holder whose Old Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated
above for further instructions.
12. Requests for Assistance or Additional Copies.
Requests for assistance or for additional copies of the Prospectus
or this Letter of Transmittal may be directed to the Exchange Agent at
the address or telephone number set forth on the cover page of this
Letter of Transmittal. Holders may also contact their broker, dealer,
commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
13. Withdrawal.
Tenders may be withdrawn only pursuant to the limited withdrawal
rights set forth in the Prospectus under the caption "The Exchange Offer
- - -- Terms of the Exchange Offer -- Withdrawal Rights."
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE
HEREOF (TOGETHER WITH THE OLD NOTES DELIVERED BY BOOK-ENTRY TRANSFER OR
IN ORIGINAL HARD COPY FORM) MUST BE RECEIVED BY THE EXCHANGE AGENT, OR
THE NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE
AGENT, PRIOR TO THE EXPIRATION DATE.
SUBSTITUTE Part 1 - PLEASE PROVIDE Social Security Number
YOUR TIN IN THE BOX AT OR Employer Identification
Form W-9 RIGHT AND CERTIFY BY Number
SIGNING AND DATING BELOW
Department of the Part 2 - Certification - Part 3 -
Treasury Under penalties of
Internal Revenue perjury, I certify
Service that: Awaiting TIN*
(1) The number shown on
this form is my correct
Taxpayer Identification Please complete the
Number (or I am Certificate of Awaiting
Payer's Request for waiting for a Taxpayer Identification
Taxpayer number to be Number below.
Identification Number issued to me) and
(TIN)
(2) I am not subject
to backup
withholding either
because I have not
been notified by
the Internal
Revenue Service
("IRS") that I am
subject to backup
withholding as a
result of failure
to report all
interest or
dividends, or the
IRS has notified
me that I am no
longer subject to
backup withholding.
Certificate Instructions - You must cross out item
(2) in Part 2 above if you have been notified by the
IRS that you are subject to backup withholding
because of underreporting interest or dividends on
your tax return. However, if after being notified
by the IRS that you were subject to backup withholding
you received another notification from the IRS
stating that you are no longer subject to backup
withholding, do not cross out item (2).
SIGNATURE DATE , 1998
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU
PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered
an application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number to the
payor within 60 days, 31% of all reportable payments made to me thereafter
will be withheld until I provide a number.
Signature Date , 1998
CERTIFICATE FOR FOREIGN RECORD HOLDERS
Under penalties of perjury, I certify that I am not a United States
citizen or resident (or I am signing for a foreign corporation, partnership,
estate or trust).
Signature Date , 1998
TRICO MARINE SERVICES, INC.
NOTICE OF GUARANTEED DELIVERY
OF 8 1/2% SERIES C SENIOR NOTES
DUE 2005
As set forth in the Prospectus dated ___________, 1998 (as the
same may be amended or supplemented from time to time, the "Prospectus")
of Trico Marine Services, Inc. (the "Issuer") and certain of its
subsidiaries under "The Exchange Offer -- Terms of the Exchange Offer --
Procedures for Tendering Old Notes" and in the Letter of Transmittal for
Offer to Exchange 8 1/2% Series D Senior Notes due 2005 (the "Letter of
Transmittal"), this form or one substantially equivalent hereto must be
used to accept the Exchange Offer (as defined below) of the Issuer if:
(i) certificates for the above-referenced Notes (the "Old Notes") are
not immediately available, (ii) time will not permit all required
documents to reach the Exchange Agent (as defined below) on or prior to
the Expiration Date (as defined in the Letter of Transmittal) or
(iii) the procedures for book-entry transfer cannot be completed on or
prior to the Expiration Date. Such form may be delivered by hand or
transmitted by telegram, telex, facsimile transmission or letter to the
Exchange Agent.
To: Texas Commerce Bank National Association (the "Exchange Agent")
For Delivery by Mail: For Overnight Delivery Only:
Texas Commerce Bank National Texas Commerce Bank National
Association Association
Corporate Trust Services Corporate Trust Services
P. O. Box 2320 1201 Main Street, 18th Floor
Dallas, Texas 75221-2320 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
By Facsimile Transmission (for eligible institutions only):
(214) 672-5746
To Confirm Receipt:
(214) 672-5125
or
(800) 275-2048
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR NUMBER OTHER THAN THOSE
SHOWN ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS
SET FORTH ABOVE, WILL NOT CONSTITUTE VALID DELIVERY.
Ladies and Gentlemen:
The undersigned hereby tenders to the Issuer, upon the terms and
conditions set forth in the Prospectus and the Letter of Transmittal
(which together constitute the "Exchange Offer"), receipt of which are
hereby acknowledged, the principal amount of Old Notes set forth below
pursuant to the guaranteed delivery procedures described in the
Prospectus and the Letter of Transmittal.
The undersigned understands and acknowledges that the Exchange
Offer will expire at 5:00 p.m., New York City time, on _____________,
1998, unless extended by the Issuer. With respect to the Exchange
Offer, "Expiration Date" means such time and date, or if the Exchange
Offer is extended, the latest time and date to which the Exchange Offer
is so extended by the Issuer.
All authority herein conferred or agreed to be conferred by this
Notice of Guaranteed Delivery shall survive the death or incapacity of
the undersigned and every obligation of the undersigned under this
Notice of Guaranteed Delivery shall be binding upon the heirs, personal
representatives, executors, administrators, successors, assigns,
trustees in bankruptcy and other legal representatives of the
undersigned.
DESCRIPTION OF OLD NOTES TENDERED
Certificate Number(s) Aggregate Principal Principal
(if known) of Old Notes Amount Represented by Amount
or Account Number at the Old Notes Tendered
Book-Entry Facility
Total:
Please Sign and Complete
Signature(s): ...................... Name(s): ..........................
.................................... ...................................
Address: ........................... Capacity (full title), if signing in
a representative capacity:
....................................
(Zip Code) ...................................
Area Code and Telephone Number:
.................................... Taxpayer Identification or Social
Dated: ............................. Security Number: ..................
GUARANTEE OF DELIVERY
The undersigned, a member of a recognized signature guarantee
medallion program within the meaning of Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, hereby guarantees (a) that
the above-named person(s) own(s) the above-described securities tendered
hereby within the meaning of Rule 10b-4 under the Securities Exchange
Act of 1934, (b) that such tender of the above-described securities
complies with Rule 10b-4, and (c) that delivery to the Exchange Agent of
certificates tendered hereby, in proper form for transfer, or delivery
of such certificates pursuant to the procedure for book-entry transfer,
in either case with delivery of a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) and any other required
documents, is being made within three Nasdaq National Market trading
days after the date of execution of a Notice of Guaranteed Delivery of
the above-named person.
___________________________________________________
(Name of Firm)
Sign here: ________________________________________
(Authorized Signature)
Name: _____________________________________________
(Please type or print)
_____________________________________________
(Area Code and Telephone Number)
_____________________________________________
Dated:________________, 1998
_____________________________________________
Address Zip Code
