UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 19, 1998
TRICO MARINE SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-28316 72-1252405
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
250 NORTH AMERICAN COURT
HOUMA, LOUISIANA 70363
(Address of principal executive offices)(Zip Code)
(504) 851-3833
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed since last report.)
ITEM 5. OTHER EVENTS.
On November 19, 1998, Trico Marine Services, Inc. (the "Company")
completed an exchange offer (the "Exchange Offer") pursuant to which the
Company had offered to exchange $280,000,000 principal amount of its 8-1/2%
Senior Notes due 2005, Series G (the "New Notes"), for a like principal
amount of all of its outstanding 8-1/2% Senior Notes due 2005, Series A, B,
D and F (the "Old Notes"). The form and terms of the New Notes are
identical in all respects to the form and terms of the Old Notes. All of
the outstanding Old Notes were exchanged for New Notes in the Exchange
Offer.
The New Notes were registered under the Securities Act of 1933, as
amended, pursuant to a Registration Statement on Form S-4 No. 333-64031.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not Applicable.
(c) Exhibits.
4.1 Indenture dated September 22, 1998 by and among the Company,
Trico Marine Assets, Inc., Trico Marine Operators, Inc., Trico
Marine International Holdings, B.V., Saevik Supply ASA, Saevik
Shipping AS and Chase Bank of Texas, National Association, as
Trustee ("Indenture").
4.2 Form of Note and Subsidiary Guaranty under the Indenture.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
-----------------------
Victor M. Perez
Vice President and
Chief Financial Officer
Dated: November 23, 1998
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
INDENTURE
DATED AS OF SEPTEMBER 22, 1998
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
TRUSTEE
CROSS-REFERENCE TABLE*
Trust Indenture
ACT SECTION INDENTURE SECTION
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N/A
(a)(4) N/A
(a)(5) 7.10
(b) 7.10
(c) N/A
311(a) 7.11
(b) 7.11
(c) N/A
312(a) 2.05
(b) 11.03
(c) 11.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06, 7.07
(c) 7.06, 11.02
(d) 7.06
314(a) 4.03, 11.02
(b) N/A
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N/A
(d) N/A
(e) 11.05
(f) N/A
315(a) 7.01
(b) 7.05, 11.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N/A
(b) 6.07
(c) 2.12
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 11.01
(b) N/A
(c) 11.01
N/A means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01.Definitions 1
Section 1.02.Other Definitions 17
Section 1.03.Incorporation by Reference of Trust Indenture Act 17
Section 1.04.Rules of Construction 18
ARTICLE 2
THE NOTES
Section 2.01.Form and Dating 18
Section 2.02.Execution and Authentication 20
Section 2.03.Registrar and Paying Agent 21
Section 2.04.Paying Agent to Hold Money in Trust 21
Section 2.05.Holder Lists 21
Section 2.06.Transfer and Exchange 22
Section 2.07.Replacement Notes 29
Section 2.08.Outstanding Notes 30
Section 2.09.Treasury Notes 30
Section 2.10.Temporary Notes 30
Section 2.11.Cancellation 31
Section 2.12.Defaulted Interest 31
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01.Notices to Trustee 31
Section 3.02.Selection of Notes to Be Redeemed 31
Section 3.03.Notice of Redemption 32
Section 3.04.Effect of Notice of Redemption 33
Section 3.05.Deposit of Redemption Price 33
Section 3.06.Notes Redeemed in Part 33
Section 3.07.Optional Redemption 33
Section 3.08.Mandatory Redemption 34
Section 3.09.Offer to Purchase by Application of Excess Proceeds 34
ARTICLE 4
COVENANTS
Section 4.01.Payment of Notes 36
Section 4.02.Maintenance of Office or Agency 37
Section 4.03.Reports 37
Section 4.04.Compliance Certificate 37
Section 4.05.Taxes 38
Section 4.06.Stay, Extension and Usury Laws 38
Section 4.07.Restricted Payments 39
Section 4.08.Dividend and Other Payment Restrictions Affecting
Subsidiaries 41
Section 4.09.Incurrence of Indebtedness and Issuance of Preferred
Stock 42
Section 4.10.Asset Sales 43
Section 4.11.Transactions with Affiliates 44
Section 4.12.Liens 45
Section 4.13.Additional Subsidiary Guarantees 45
Section 4.14.Corporate Existence 45
Section 4.15.Offer to Repurchase Upon Change of Control 46
Section 4.16.Issuances and Sales of Capital Stock of Wholly Owned
Restricted Subsidiaries 47
Section 4.17.Sale-and-leaseback Transactions 47
Section 4.18.No Inducements 48
ARTICLE 5
SUCCESSORS
Section 5.01.Merger, Consolidation, or Sale of Assets 48
Section 5.02.Successor Corporation Substituted 49
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01.Events of Default 49
Section 6.02.Acceleration 51
Section 6.03.Other Remedies 51
Section 6.04.Waiver of Past Defaults 51
Section 6.05.Control by Majority 52
Section 6.06.Limitation on Suits 52
Section 6.07.Rights of Holders of Notes to Receive Payment 52
Section 6.08.Collection Suit by Trustee 53
Section 6.09.Trustee May File Proofs of Claim 53
Section 6.10.Priorities 53
Section 6.11.Undertaking for Costs 54
ARTICLE 7
TRUSTEE
Section 7.01.Duties of Trustee 54
Section 7.02.Rights of Trustee 55
Section 7.03.Individual Rights of Trustee 56
Section 7.04.Trustee's Disclaimer 56
Section 7.05.Notice of Defaults 56
Section 7.06.Reports by Trustee to Holders of the Notes 56
Section 7.07.Compensation and Indemnity 57
Section 7.08.Replacement of Trustee 58
Section 7.09.Successor Trustee by Merger, etc 59
Section 7.10.Eligibility; Disqualification 59
Section 7.11.Preferential Collection of Claims Against Company 59
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01.Option to Effect Legal Defeasance or Covenant Defeasance 59
Section 8.02.Legal Defeasance and Discharge 59
Section 8.03.Covenant Defeasance 60
Section 8.04.Conditions to Legal or Covenant Defeasance 60
Section 8.05.Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions 62
Section 8.06.Repayment to Company 62
Section 8.07.Reinstatement 62
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01.Without Consent of Holders of Notes 63
Section 9.02.With Consent of Holders of Notes 64
Section 9.03.Compliance with Trust Indenture Act 65
Section 9.04.Revocation and Effect of Consents 65
Section 9.05.Notation on or Exchange of Notes 65
Section 9.06.Trustee to Sign Amendments, etc. 65
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Subsidiary Guarantee 66
Section 10.02. Execution and Delivery of Subsidiary Guarantee 67
Section 10.03. Guarantors May Consolidate, etc., on Certain Terms 67
Section 10.04. Releases Following Sale of Assets 68
Section 10.05. Releases Following Designation as an Unrestricted
Subsidiary 69
Section 10.06. Limitation on Guarantor Liability 69
Section 10.07. "Trustee" to Include Paying Agent 69
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls 69
Section 11.02. Notices 69
Section 11.03. Communication by Holders of Notes with Other Holders
of Notes 72
Section 11.04. Certificate and Opinion as to Conditions Precedent 72
Section 11.05. Statements Required in Certificate or Opinion 72
Section 11.06. Rules by Trustee and Agents 73
Section 11.07. No Personal Liability of Directors, Officers,
Employees and Stockholders 73
Section 11.08. Governing Law 73
Section 11.09. No Adverse Interpretation of Other Agreements 73
Section 11.10. Successors 74
Section 11.11. Severability 74
Section 11.12. Counterpart Originals 74
Section 11.13. Table of Contents, Headings, etc 74
EXHIBITS
EXHIBIT A-1 Form of Note A-1-1
EXHIBIT B Form of Subsidiary Guarantee B-1
EXHIBIT C Form of Supplemental Indenture C-1
-i-
INDENTURE
This Indenture, dated as of September 22, 1998 is among Trico Marine
Services, Inc., a Delaware corporation (the "Company"), the guarantors
listed on the signature page hereto (each, a "Guarantor" and, collectively,
the "Guarantors") and Chase Bank of Texas, National Association, as trustee
(the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders
of the 8 1/2 % Senior Notes due 2005, Series G (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01.DEFINITIONS.
"Affiliate" of any specified Person means an "affiliate" of such
Person, as such term is defined for purposes of Rule 144 under the
Securities Act.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures
of the Depository that apply to such transfer and exchange.
"Asset Sale" means (a) the sale, lease, conveyance or other
disposition (a "disposition") of any assets or rights (including, without
limitation, by way of a sale and leaseback), excluding dispositions in the
ordinary course of business (provided that the disposition of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by Sections 4.15 and/or 5.01
of this Indenture and not by the provisions of Section 4.10 hereof), (b)
the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any of the Company's Subsidiaries, and (c) any Event of
Loss, whether in the case of clause (a), (b) or (c), in a single
transaction or a series of related transactions, provided that such
transaction or series of transactions (i) has a fair market value in excess
of $1.0 million or (ii) results in the payment of net proceeds in excess of
$1.0 million. Notwithstanding the foregoing, the following transactions
will be deemed not to be Asset Sales: (A) a disposition of obsolete or
excess equipment or other assets; (B) a disposition of assets by the
Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned
Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary; (C) a disposition of Equity Interests by a Wholly Owned
Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary; (D) a Permitted Investment or Restricted Payment that is
permitted by this Indenture; (E) a disposition of assets by the Company or
any of its Restricted Subsidiaries to a Person that is an Affiliate of the
Company or such Restricted Subsidiary and is engaged in the business of
providing marine support vessels and related services to the oil and gas
industry (or a business that is reasonably complementary or related thereto
as determined in good faith by the Board of Directors), which Person is an
Affiliate solely because the Company or such Restricted Subsidiary has an
Investment in such Person, provided that such transaction complies with
Section 4.11 hereof; (F) any charter or lease of any equipment or other
assets entered into in the ordinary course of business and with respect to
which the Company or any Restricted Subsidiary thereof is the lessor,
except any such charter or lease that provides for the acquisition of such
assets by the lessee during or at the end of the term thereof for an
amount that is less than the fair market value thereof at the time the
right to acquire such assets occurs; and (G) any trade or exchange by the
Company or any Restricted Subsidiary of equipment or other assets for
equipment or other assets owned or held by another Person, provided that
the fair market value of the assets traded or exchanged by the Company or
such Restricted Subsidiary (together with any cash or Cash Equivalents) is
reasonably equivalent to the fair market value of the assets (together with
any cash or Cash Equivalents) to be received by the Company or such
Restricted Subsidiary. The fair market value of any non-cash proceeds of a
disposition of assets and of any assets referred to in the foregoing clause
(G) of this definition shall be determined in the manner contemplated in
the definition of the term "fair market value," the results of which
determination shall be set forth in an Officers' Certificate delivered to
the Trustee.
"Attributable Indebtedness" in respect of a sale-and-leaseback
transaction means, at the time of determination, the present value
(discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such
sale-and-lease-back transaction (including any period for which such lease
has been extended or may, at the option of the lessor, be extended). As
used in the preceding sentence, the "net rental payments" under any lease
for any such period shall mean the sum of rental and other payments
required to be paid with respect to such period by the lessee thereunder,
excluding any amounts required to be paid by such lessee on account of
maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges. In the case of any lease that is terminable by the lessee
upon payment of penalty, such net rental payment shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) United States dollars, (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (c) certificates of
deposit and Eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with any
commercial bank organized under the laws of any country that is a member of
the Organization for Economic Cooperation and Development having capital
and surplus in excess of $500 million, (d) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above, (e)
commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Rating Service and in each
case maturing within 270 days after the date of acquisition, (f) deposits
available for withdrawal on demand with any commercial bank not meeting the
qualifications specified in clause (c) above, provided all such deposits do
not exceed $2.0 million in the aggregate at any one time, and (g) money
market mutual funds substantially all of the assets of which are of the
type described in the foregoing clauses (a) through (e).
"Change of Control" means the occurrence of any of the following: (a)
the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Subsidiaries, taken as a whole, (b) the adoption of a plan relating to
the liquidation or dissolution of the Company, (c) the consummation of any
transaction (including, without limitation, any merger or consolidation)
the result of which is that any "person" (as such term is used in Section
13(d)(3) of the Exchange Act) becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly
or indirectly through one or more intermediaries, of more than 50% of the
voting power of the outstanding voting stock of the Company or (d) the
first day on which more than a majority of the members of the Board of
Directors are not Continuing Directors; provided, however, that a
transaction in which the Company becomes a Subsidiary of another Person
(other than a Person that is an individual) shall not constitute a Change
of Control if (i) the stockholders of the Company immediately prior to such
transaction "beneficially own" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly through one or
more intermediaries, at least a majority of the voting power of the
outstanding voting stock of the Company immediately following the
consummation of such transaction and (ii) immediately following the
consummation of such transaction, no "person" (as such term is defined
above), other than such other Person (but including the holders of the
Equity Interests of such other Person), "beneficially owns" (as such term
is defined above), directly or indirectly through one or more
intermediaries, more than 50% of the voting power of the outstanding voting
stock of the Company. For purposes of this definition, a time charter of
vessels to customers in the ordinary course of business shall not be deemed
to be a "lease" under clause (a) above.
"Common Stock" means the common stock of the Company, par value $0.01
per share.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus, to
the extent deducted or excluded in calculating Consolidated Net Income for
such period, (a) an amount equal to any extraordinary loss plus any net
loss realized in connection with an Asset Sale, (b) provision for taxes
based on income or profits of such Person and its Restricted Subsidiaries,
(c) Consolidated Interest Expense of such Person and its Restricted
Subsidiaries, and (d) depreciation and amortization (including amortization
of goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) of such Person and its
Restricted Subsidiaries, in each case, on a consolidated basis and
determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of such
Person for such period to the Consolidated Interest Expense of such Person
for such period; provided, however, that the Consolidated Interest Coverage
Ratio shall be calculated giving pro forma effect to each of the following
transactions as if each such transaction had occurred at the beginning of
the applicable four-quarter reference period: (a) any incurrence,
assumption, guarantee or redemption by the Company or any of its Restricted
Subsidiaries of any Indebtedness (other than revolving credit borrowings)
subsequent to the commencement of the period for which the Consolidated
Interest Coverage Ratio is being calculated but prior to the date on which
the event for which the calculation of the Consolidated Interest Coverage
Ratio is made (the "Calculation Date"); (b) any acquisition that has been
made by the Company or any of its Restricted Subsidiaries, or approved and
expected to be consummated within 30 days of the Calculation Date,
including, in each case, through a merger or consolidation, and including
any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date (in which case Consolidated Cash Flow for such reference
period shall be calculated without giving effect to clause (c) of the
proviso set forth in the definition of Consolidated Net Income); and (c)
any other transaction that may be given pro forma effect in accordance with
Article 11 of Regulation S-X as in effect from time to time; provided,
further, however, that (i) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date, shall
be excluded and (ii) the Consolidated Interest Expense attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date, shall
be excluded, but only to the extent that the obligations giving rise to
such Consolidated Interest Expense will not be obligations of the referent
Person or any of its Restricted Subsidiaries following the Calculation
Date.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum, without duplication, of (a) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued (including, without limitation, amortization of
original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations but excluding amortization of debt issuance costs) and (b) the
consolidated interest expense of such Person and its Restricted
Subsidiaries that was capitalized during such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, provided that (a) the Net Income (but not loss) of
any Person that is not a Restricted Subsidiary or that is accounted for by
the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the referent Person or
a Wholly Owned Restricted Subsidiary thereof, (b) the Net Income of any
Restricted Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its stockholders,
(c) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded and (d) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Tangible Assets" means, with respect to any Person
as of any date, the sum of the amounts that would appear on a consolidated
balance sheet of such Person and its consolidated Restricted Subsidiaries
as the total assets of such Person and its consolidated Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP
and after deducting therefrom, (a) to the extent otherwise included,
unamortized debt discount and expenses and other unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, licenses, organization or development expenses and other
intangible items and (b) the aggregate amount of liabilities of the Company
and its Restricted Subsidiaries which may be properly classified as current
liabilities (including tax accrued as estimated), determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (a) the consolidated equity of the common stockholders of
such Person and its consolidated Restricted Subsidiaries as of such date
plus (b) the respective amounts reported on such Person's balance sheet as
of such date with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only
to the extent of any cash received by such Person upon issuance of such
preferred stock, less (i) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of tangible assets of a
going concern business made within 12 months after the acquisition of such
business) subsequent to July 21, 1997 in the book value of any asset owned
by such Person or a consolidated Restricted Subsidiary of such Person, (ii)
all investments as of such date in unconsolidated Subsidiaries and in
Persons that are not Restricted Subsidiaries and (iii) all unamortized debt
discount and expense and unamortized deferred charges as of such date, in
each case determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors who (a) was a member of the Board of
Directors on July 21, 1997 or (b) was nominated for election to the Board
of Directors with the approval of, or whose election to the Board of
Directors was ratified by, at least two-thirds of the Continuing Directors
who were members of the Board of Directors at the time of such nomination
or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which
the Trustee may give notice to the Company.
"Credit Facility" means that certain Revolving Credit Agreement, dated
as of July 26, 1996, as amended, by and among the Company, its Subsidiaries
named therein, BankBoston, N.A., Hibernia National Bank and First National
Bank of Commerce, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, in
each case as amended, restated, modified, supplemented, extended, renewed,
replaced, refinanced or restructured from time to time, whether by the same
or any other agent or agents, lender or group of lenders, whether
represented by one or more agreements and whether one or more Subsidiaries
are added or removed as borrowers or guarantors thereunder or as parties
thereto.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means Notes that are in the form of Exhibit A-1
attached hereto (but without including the text referred to in footnote 1
thereto).
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03
hereof as the Depository with respect to the Notes, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures (excluding any
maturity as a result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder thereof, in whole or in part, on
or prior to the date that is 91 days after the date on which the Notes
mature or are redeemed or retired in full; provided, however, that any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof (or of any security into which it is convertible or for
which it is exchangeable) have the right to require the issuer to
repurchase such Capital Stock (or such security into which it is
convertible or for which it is exchangeable) upon the occurrence of any of
the events constituting an Asset Sale or a Change of Control shall not
constitute Disqualified Stock if such Capital Stock (and all such
securities into which it is convertible or for which it is exchangeable)
provides that the issuer thereof will not repurchase or redeem any such
Capital Stock (or any such security into which it is convertible or for
which it is exchangeable) pursuant to such provisions prior to compliance
by the Company with Section 4.10 or 4.15 of this Indenture, as the case may
be.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Event of Loss" means, with respect to any property or asset of the
Company or any Restricted Subsidiary, (a) any damage to such property or
asset that results in an insurance settlement with respect thereto on the
basis of a total loss or a constructive or compromised total loss or (b)
the confiscation, condemnation or requisition of title to such property or
asset by any government or instrumentality or agency thereof. An Event of
Loss shall be deemed to occur as of the date of the insurance settlement,
confiscation, condemnation or requisition of title, as applicable.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by the Company to
exchange Notes for all outstanding Series A/B Notes, Series D Notes and
Series F Notes.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Facility)
in existence on July 21, 1997, until such amounts are repaid.
The term "fair market value" means, with respect to any asset or
Investment, the fair market value of such asset or Investment at the time
of the event requiring such determination, as determined in good faith by
the Board of Directors of the Company, or, with respect to any asset or
Investment in excess of $5.0 million (other than cash or Cash Equivalents),
as determined by a reputable appraisal firm that is, in the judgment of
such Board of Directors, qualified to perform the task for which such firm
has been engaged and independent with respect to the Company.
"Funded Indebtedness" means any Indebtedness for money borrowed that
by its terms matures at, or is extendible or renewable at the option of the
obligor to, a date more than 12 months after the date of the incurrence of
such Indebtedness.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect from time to
time.
"Global Note" means a permanent global senior note that is deposited
with the Note Custodian and registered in the name of the Depository or its
nominee representing the Notes.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"Guarantor" means (a) each Restricted Subsidiary of the Company named
on the signature page hereto, (b) any other Restricted Subsidiary of the
Company that executes a Subsidiary Guarantee in accordance with
Sections 4.13 and 10.02 hereof and (c) the respective successors and
assigns of such Restricted Subsidiaries, as required under Article 10
hereof, in each case until such time as any such Restricted Subsidiary
shall be released and relieved of its obligations pursuant to Section 10.04
or 10.05 hereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, (b) other
agreements or arrangements designed to protect such Person against
fluctuations in interest rates and (c) any foreign currency futures
contract, option or similar agreement or arrangement designed to protect
such Person against fluctuations in foreign currency rates, in each case to
the extent such obligations are incurred in the ordinary course of business
of such Person.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, debentures, notes or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property or representing
any Hedging Obligations, except any such balance that constitutes an
accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP. The amount of any Indebtedness outstanding as of any
date shall be (a) the accreted value thereof, in the case of any
Indebtedness that does not require current payments of interest, and (b)
the principal amount thereof, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct
or indirect loans (including guarantees by the referent Person of, and
Liens on any assets of the referent Person securing, Indebtedness or other
obligations of other Persons), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in
the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP; provided, however, that the
following shall not constitute Investments: (i) extensions of trade credit
or other advances to customers on commercially reasonable terms in
accordance with normal trade practices or otherwise in the ordinary course
of business, (ii) Hedging Obligations and (iii) endorsements of negotiable
instruments and documents in the ordinary course of business. If the
Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale
or disposition, such Person is no longer a Restricted Subsidiary of the
Company, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value of the
Equity Interests of such Restricted Subsidiary not sold or disposed of in
an amount determined as provided in Section 4.07 of this Indenture.
"Issue Date" means the first date on which the Series G Notes were
issued hereunder.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of Houston, Texas, the City of New York or at a
place of payment are authorized by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction other than a precautionary
financing statement respecting a lease not intended as a security
agreement).
"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, if any, and principal payments due on such Note as if such Note
were redeemed on August 1, 2001, computed using a discount rate equal to
the Treasury Rate plus 50 basis points, over (ii) the outstanding principal
amount of such Note. "Treasury Rate" is defined as the yield to maturity
at the time of the computation of United States Treasury securities with a
constant maturity (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519), which has become publicly available
at least two Business Days prior to the date of the redemption notice or,
if such Statistical Release is no longer published, any publicly available
source of similar market date) most nearly equal to the then remaining
maturity of the Notes assuming redemption of the Notes on August 1, 2001;
provided, however, that if the Make-Whole Average Life of such Note is not
equal to the constant maturity of the United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained
by linear interpolation (calculated to the nearest one-twelfth of a year)
from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the Make-Whole Average Life of
such Notes is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of
one year shall be used. "Make-Whole Average Life" means the number of
years (calculated to the nearest one-twelfth) between the date of
redemption and August 1, 2001.
"Make-Whole Price" with respect to a Note means the greater of (i) the
sum of the outstanding principal amount and Make-Whole Amount of such Note,
and (ii) the redemption price of such Note on August 1, 2001, determined
pursuant to the Indenture (104.250% of the principal amount).
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction
in respect of preferred stock dividends, excluding, however, (a) any gain
(but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (i) any Asset Sale (including,
without limitation, dispositions pursuant to sale-and-leaseback
transactions) or (ii) the disposition of any securities by such Person or
any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries and (b)
any extraordinary or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but
not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net
of (without duplication) (a) the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking
fees, sales commissions, recording fees, title transfer fees, title
insurance premiums, appraiser fees and costs incurred in connection with
preparing such asset for sale) and any relocation expenses incurred as a
result thereof, (b) taxes paid or estimated to be payable as a result
thereof (after taking into account any available tax credits or deductions
and any tax sharing arrangements), (c) amounts required to be applied to
the repayment of Indebtedness (other than under the Credit Facility)
secured by a Lien on the asset or assets that were the subject of such
Asset Sale and (d) any reserve established in accordance with GAAP or any
amount placed in escrow, in either case for adjustment in respect of the
sale price of such asset or assets, until such time as such reserve is
reversed or such escrow arrangement is terminated, in which case Net
Proceeds shall include only the amount of the reserve so reserved or the
amount returned to the Company or its Restricted Subsidiaries from such
escrow arrangement, as the case may be.
"Non-Recourse Debt" means Indebtedness (a) as to which neither the
Company nor any of its Restricted Subsidiaries (i) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or is otherwise directly or indirectly liable (as
a guarantor or otherwise) or (ii) constitutes the lender, (b) no default
with respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would
permit (upon notice, lapse of time or both) the holders of Indebtedness of
the Company or any of its Restricted Subsidiaries to declare a default on
such Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity and (c) as to which the lenders have been
notified in writing that they will not have any recourse to the stock or
assets of the Company or any of its Restricted Subsidiaries, except to the
extent of any Indebtedness incurred by the Company or any of its Restricted
Subsidiaries in accordance with clause (a)(i) above.
"Note Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 11.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Pari Passu Indebtedness" means, with respect to any Net Proceeds from
Asset Sales, Indebtedness of the Company and its Restricted Subsidiaries
the terms of which require the Company or such Restricted Subsidiary to
apply such Net Proceeds to offer to repurchase such Indebtedness.
"Participant" means with respect to DTC a Person who has an account
with DTC.
"Permitted Investments" means (a) any Investment in the Company or in
a Wholly Owned Restricted Subsidiary of the Company, (b) any Investment in
Cash Equivalents, (c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person if as a result of such Investment (i)
such Person becomes a Wholly Owned Restricted Subsidiary of the Company or
(ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the
Company, (d) any Investment made as a result of the receipt of non-cash
consideration from (i) an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof or (ii) a disposition of assets that
does not constitute an Asset Sale, and (e) Investments in a Person engaged
principally in the business of providing marine support vessels and related
services to the oil and gas industry or businesses reasonably complementary
or related thereto provided that the aggregate amount of such Investments
pursuant to this clause (e) in Persons that are not Restricted Subsidiaries
of the Company shall not exceed $20.0 million at any one time.
"Permitted Liens" means (a) Liens securing Indebtedness incurred
pursuant to clause (a) of the second paragraph of Section 4.09 hereof plus
additional Indebtedness under the Credit Facility not to exceed an amount
equal to 15% of Consolidated Net Tangible Assets, (b) Liens in favor of
the Company and its Restricted Subsidiaries, (c) Liens on property of a
Person existing at the time such Person is merged into or consolidated with
the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any property other than those of the
Person merged into or consolidated with the Company or any of its
Restricted Subsidiaries, (d) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the
Company, provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any other property,
(e) Liens to secure the performance of statutory obligations, surety or
appeal bonds, bid or performance bonds, insurance obligations or other
obligations of a like nature incurred in the ordinary course of business,
(f) Liens securing Hedging Obligations, (g) Liens existing on July 21,
1997, (h) Liens securing Non-Recourse Debt, (i) any interest or title of a
lessor under a Capital Lease Obligation or an operating lease, (j) Liens
arising by reason of deposits necessary to obtain standby letters of credit
in the ordinary course of business, (k) Liens on real or personal property
or assets of the Company or a Restricted Subsidiary thereof to secure
Indebtedness incurred for the purpose of (i) financing all or any part of
the purchase price of such property or assets incurred prior to, at the
time of, or within 120 days after, the acquisition of such property or
assets or (ii) financing all or any part of the cost of construction of any
such property or assets, provided that the amount of any such financing
shall not exceed the amount expended in the acquisition of, or the
construction of, such property or assets and such Liens shall not extend to
any other property or assets of the Company or a Restricted Subsidiary
(other than any associated accounts, contracts and insurance proceeds),
(l) Liens securing Permitted Refinancing Indebtedness with respect to any
Indebtedness referred to in clause (k) above, and (m) Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of
the Company with respect to obligations that do not exceed $5.0 million at
any one time outstanding and that (1) are not incurred in connection with
the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (2) do not in the
aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries; provided, however, that (a) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus premium, if any, and accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith), (b) such Permitted Refinancing Indebtedness has a final
maturity date no earlier than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded, (c) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms at
least as favorable, taken as a whole, to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded and (d) such
Indebtedness is incurred either by the Company or by the Restricted
Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; provided, however,
that a Restricted Subsidiary may guarantee Permitted Refinancing
Indebtedness incurred by the Company, whether or not such Restricted
Subsidiary was an obligor or guarantor of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; provided, further,
however, that if such Permitted Refinancing Indebtedness is subordinated to
the Notes, such guarantee shall be subordinated to such Restricted
Subsidiary's Subsidiary Guarantee to at least the same extent.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political
subdivision thereof (including any subdivision or ongoing business of any
such entity or substantially all of the assets of any such entity,
subdivision or business).
"Productive Assets" means vessels or other assets (other than assets
that would be classified as current assets in accordance with GAAP) of the
kind used or usable by the Company or its Restricted Subsidiaries in the
business of providing marine support vessels and related services to the
oil and gas industry (or any business that is reasonably complementary or
related thereto as determined in good faith by the Board of Directors).
"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.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Department of the Trustee (or any
successor department of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted 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.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A/B Indenture" means the Indenture dated as of July 21, 1997
among the Company, the Subsidiary Guarantors thereto and Texas Commerce
Bank National Association, as Trustee, providing for the issuance of the
Series A/B Notes in the aggregate principal amount of $110,000,000, as such
may be amended and supplemented from time to time.
"Series D Indenture" means the Indenture dated as of November 14, 1997
among the Company, the Subsidiary Guarantors thereto and Texas Commerce
Bank National Association, as Trustee, providing for the issuance of the
Series D Notes in the aggregate principal amount of $100,000,000, as such
may be amended and supplemented from time to time.
"Series F Indenture" means the Indenture dated as of 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 F Notes in the aggregate principal amount of $70,000,000, as such
may be amended and supplemented from time to time.
"Series A/B Notes" means the Company's 8 1/2 % Senior Notes due August
1, 2005, Series A and B issued pursuant to the Series A/B Indenture, as
such may be amended or supplemented from time to time.
"Series D Notes" means the Company's 8 1/2 % Senior Notes due August
1, 2005, Series D issued pursuant to the Series D Indenture, as such may be
amended or supplemented from time to time.
"Series F Notes" means the Company's 8 1/2 % Senior Notes due August
1, 2005, Series F issued pursuant to the Series F Indenture, as such may be
amended or supplemented from time to time.
"Series A/B Subsidiary Guarantees" means those subsidiary guarantees
of the Series A/B Notes issued pursuant to the Series A/B Indenture.
"Series D Subsidiary Guarantees" means those subsidiary guarantees of
the Series D Notes issued pursuant to the Series D Indenture.
"Series F Subsidiary Guarantees" means those subsidiary guarantees of
the Series F Notes issued pursuant to the Series 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 was in effect on July 21, 1997, (b) any other Restricted
Subsidiary of the Company that provides a guarantee under the Credit
Facility or incurs any Funded Indebtedness and (c) their respective
successors and assigns.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment
of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of
that Person (or a combination thereof) and (b) any partnership (i) the sole
general partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (ii) the only general partners of which are
such Person or of one or more Subsidiaries of such Person (or any
combination thereof).
"Subsidiary Guarantees" means the joint and several guarantees of the
Company's payment obligations under the Notes issued by all of the
Guarantors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
<section><section> 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a
resolution of the Board of Directors, but only to the extent that such
Subsidiary at the time of such designation (a) has no Indebtedness other
than Non-Recourse Debt, (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
of the Company unless such agreement, contract, arrangement or
understanding does not violate the terms of this Indenture described in
Section 4.11 hereof, and (c) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (i) to subscribe for additional Equity Interests or (ii) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results, in each case,
except to the extent otherwise permitted by this Indenture. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and
was permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company as of such
date (and, if such Indebtedness is not permitted to be incurred as of such
date pursuant to Section 4.09 hereof, the Company shall be in default of
such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary,
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall
only be permitted if (A) such Indebtedness is permitted by Section 4.09
hereof, calculated on a pro forma basis as if such designation had occurred
at the beginning of the four-quarter reference period, and (B) no Default
or Event of Default would be in existence following such designation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (ii) the number of years (calculated to the nearest one-
twelfth) that will elapse between such date and the making of such payment,
by (b) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person to the extent (a) all of the outstanding Capital
Stock or other ownership interests of which (other than directors'
qualifying shares) shall at the time be owned directly or indirectly by
such Person or (b) such Restricted Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of such
foreign jurisdiction or individual or corporate citizens of such foreign
jurisdiction in order for such Restricted Subsidiary to transact business
in such foreign jurisdiction, provided that such Person, directly or
indirectly, owns the remaining Capital Stock or ownership interests in such
Restricted Subsidiary and, by contract or otherwise, controls the
management and business of such Restricted Subsidiary and derives the
economic benefits of ownership of such Restricted Subsidiary to
substantially the same extent as if such Restricted Subsidiary were a
wholly owned Restricted Subsidiary.
SECTION 1.02.OTHER DEFINITIONS.
Defined in
TERM SECTION
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" or "incurrence" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
SECTION 1.03.INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. Any terms incorporated in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
SECTION 1.04.RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01.FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1 hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
shall be issued in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Notes. Except as provided in Section 2.01(c), Notes
offered and issued in connection with the Exchange Offer by the Company
shall be issued initially in the form of one or more Global Notes, which
shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, as custodian of the Depository, and registered in
the name of the Depository or a nominee of the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and transfers of interests. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
amount of outstanding Notes represented thereby shall be made by the
Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by
Section 2.06 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to
Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Trustee as
custodian for the Depository.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depository or by the
Note Custodian as custodian for the Depository or under such Global Note,
and the Depository may be treated by the Company, the Trustee and any Agent
of the Company or the Trustee as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any Agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the
Depository and its Participants, the operation of customary practices of
such Depository governing the exercise of the rights of an owner of a
beneficial interest in any Global Note.
(c) Definitive Notes. Notes offered and issued in connection with
the Exchange Offer by the Company to Holders who elect to take their Notes
in definitive form shall be issued initially in the form of Definitive
Notes, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.
SECTION 2.02.EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. Such signature shall be conclusive evidence that the Note
has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A-1.
The Trustee shall authenticate (i) the Series G Notes from time to
time for issue only in exchange for a like principal amount of Series A/B
Notes, Series D Notes or Series F Notes, in each case upon a written order
of the Company signed by one Officer, which written order shall specify
(a) the amount of Notes to be authenticated and the date from which
interest on such securities shall accrue and (b) the amount of Notes to be
issued in global form or definitive form and (ii) Series G Notes for issue
for additional principal amounts as may be set forth in a written order of
the Company signed by an Officer as described below in paragraph 4 of the
Notes. The aggregate principal amount of Notes outstanding at any time may
not exceed $280,000,000 plus any additional principal amount issued
pursuant to item (ii) of the first sentence of this paragraph, except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the
Company, any Guarantor or an Affiliate of the Company.
SECTION 2.03.REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or
more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying
agent. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company shall notify the Trustee in writing of the name
and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent,
the Trustee shall act as such. The Company shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture, and such
agreement shall incorporate the TIA's provisions of this Indenture that
relate to such Agent. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.04.PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or premium, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at
any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
SECTION 2.05.HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of all Holders and shall otherwise comply with TIA <section> 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee
at least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise comply
with TIA <section> 312(a).
SECTION 2.06.TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through
the Depository, in accordance with this Indenture and the procedures of the
Depository therefor.
(b) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for
an equal principal amount of Definitive Notes of other authorized
denominations, the Registrar shall register the transfer or make the
exchange as requested only if the Definitive Notes are presented or
surrendered for registration of transfer or exchange, are endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized
in writing.
(c) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global Note may
upon request, subject to the Applicable Procedures, exchange such
beneficial interest for a Definitive Note, upon receipt by the Trustee
of written instructions or such other form of instructions as is
customary for the Depository, from the Depository or its nominee on
behalf of any Person having a beneficial interest in a Global Note, in
which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian,
cause the aggregate principal amount of Global Notes to be reduced
accordingly and, following such reduction, the Company shall execute
and, the Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.06(c) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or Indirect
Participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Following any such issuance of Definitive
Notes, the Trustee, as Registrar, shall instruct the Depository to
reduce or cause to be reduced the aggregate principal amount of the
applicable Global Note to reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture, a Global Note may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(e) Authentication of Definitive Notes in Absence of Depository. If
at any time:
(i) the Depository for the Notes notifies the Company that the
Depository is unwilling or unable to continue as Depository for the
Global Notes and a successor Depository for the Global Notes is not
appointed by the Company within 90 days after delivery of such notice;
or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under
this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate
and deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(f) Intentionally Omitted
(g) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, all Global Notes
shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged
for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global
Note, by the Trustee or the Notes Custodian, at the direction of the
Trustee, to reflect such reduction.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, subject
to this Section 2.06, the Company shall execute and, upon the written
order of the Company signed by two Officers of the Company, the
Trustee shall authenticate Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.07, 4.10, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Definitive Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The Company and the Registrar shall not be required:
(A) to issue, to register the transfer of or to exchange
Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on
the day of selection;
(B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part;
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date; or
(D) to register the transfer of a Note other than in amounts
of $1,000 or multiple integrals thereof.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Definitive Notes and Global
Notes in accordance with the provisions of Section 2.02 hereof.
SECTION 2.07.REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company, or
the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon the
written order of the Company signed by two Officers of the Company, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied
by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
If, after the delivery of such replacement Note, a bona fide purchaser of
the original Note in lieu of which such replacement Note was issued
presents for payment or registration such original Note, the Trustee shall
be entitled to recover such replacement Note from the Person to whom it was
delivered or any Person taking therefrom, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Company, the Trustee, any Agent and any authenticating agent in connection
therewith.
Subject to the provisions of the final sentence of the preceding
paragraph of this Section 2.07, every replacement Note is an additional
obligation of the Company and shall be entitled to all of the benefits of
this Indenture equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.08.OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Company, any
Subsidiary of the Company or an Affiliate of the Company or any Subsidiary
of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the entire principal of and premium, if any, and interest on any
Note are considered paid under Section 4.01 hereof, it ceases to be
outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary of the
Company or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on
and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
SECTION 2.09.TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by
the Company, a Subsidiary of the Company or an Affiliate, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Trustee knows are so owned
shall be so disregarded. Notwithstanding the foregoing, Notes that the
Company, a Subsidiary of the Company or an Affiliate offers to purchase or
acquires pursuant to an offer, exchange offer, tender offer or otherwise
shall not be deemed to be owned by the Company, a Subsidiary of the Company
or an Affiliate until legal title to such Notes passes to the Company, such
Subsidiary or such Affiliate as the case may be.
SECTION 2.10.TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of
the Company signed by two Officers of the Company. Temporary Notes shall
be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes. Until such exchange, Holders of temporary
Notes shall be entitled to all of the benefits of this Indenture.
SECTION 2.11.CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or
cancellation and, at the request of the Company, shall destroy cancelled
Notes (subject to the record retention requirement of the Exchange Act).
Certification of the destruction of all cancelled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that
it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12.DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall notify
the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Company shall
fix or cause to be fixed each such special record date and payment date,
provided, however, that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. At
least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that
states the special record date, the related payment date and the amount of
such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01.NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
SECTION 3.02.SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the
Notes, on a pro rata basis, by lot or in accordance with any other method
the Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 days nor more than
60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples
of $1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
The provisions of the two preceding paragraphs of this Section 3.02
shall not apply with respect to any redemption affecting only a Global
Note, whether such Global Note is to be redeemed in whole or in part. In
case of any such redemption in part, the unredeemed portion of the
principal amount of the Global Note shall be in an authorized denomination.
SECTION 3.03.NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in a
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption cease to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
If any of the Notes to be redeemed is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord
with the procedures of the Depository applicable to redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days
(unless the Company and the Trustee agree to a shorter period) prior to the
redemption date, an Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.
SECTION 3.04.EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may
not be conditional.
SECTION 3.05.DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 2.04
hereof) money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any money deposited with the Paying Agent by
the Company in excess of the amounts necessary to pay the redemption price
of and accrued interest on all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
SECTION 3.06.NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the unredeemed portion
of the Note surrendered.
SECTION 3.07.OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Notes pursuant to this
Section 3.07 prior to August 1, 2001. Thereafter, the Company shall have
the option to redeem the Notes, in whole or in part, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, to the applicable redemption date, if
redeemed during the twelve-month period beginning on August 1 of the years
indicated below:
YEAR PERCENTAGE
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, the Company may at any time prior to August 1, 2001, at its
option, redeem the Notes, in whole or in part, at the Make-Whole Price,
plus accrued and unpaid interest, if any, thereon to the redemption date.
In addition, at any time prior to July 17, 2000, the Company may redeem up
to 35% of the aggregate principal amount of Notes at a redemption price of
108.5% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon to the redemption date, with the net cash proceeds of one
or more Qualified Equity Offerings, provided that (i) at least $182.0
million in aggregate principal amount of Notes remain outstanding
immediately after the occurrence of each such redemption and (ii) each such
redemption shall occur within 60 days of the date of the closing of each
such Qualified Equity Offering. For purposes of this paragraph only, any
reference herein to "Notes" shall be deemed to include the Notes and the
Series A/B Notes, the Series D Notes and the Series F Notes.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through Section 3.06 hereof.
SECTION 3.08.MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.15 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.
SECTION 3.09.OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Notes (an
"Asset Sale Offer"), it shall follow the procedures specified below. For
purposes of this Section 3.09, any reference herein to "Notes" shall be
deemed to include the Notes, the Series A/B Notes, the Series D Notes and
the Series F Notes.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later
than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes
validly tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased shall be made in the same manner as interest payments
are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close
of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to each of the Holders, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
The Asset Sale Offer shall be made to all Holders. The notice, which shall
govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and
may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Company or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Trustee shall select the
Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Trustee so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
If any of the Notes subject to an Asset Sale Offer is in the form of a
Global Note, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depository applicable to
repurchases.
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.09. The Company
or the Paying Agent, as the case may be, shall promptly (but in any case
not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount
equal to any unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Section 3.01 through Section 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01.PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of and
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. New York time on
the due date money deposited by the Company in immediately available funds
and designated for and sufficient to pay all principal, premium, if any,
then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to the interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02.MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the City of New York an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration
of transfer or for exchange and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in the City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with
Section 2.03.
SECTION 4.03.REPORTS.
(a) Whether or not the Company is required to do so by the rules and
regulations of the SEC, the Company will file with the SEC (unless the SEC
will not accept such a filing) and, within 15 days of filing, or attempting
to file, the same with the SEC, furnish to the holders of the Notes (i) all
quarterly and annual financial and other information with respect to the
Company and its Subsidiaries that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Company were required to
file such forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants, and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required
to file such reports. The Company shall at all times comply with TIA
<section> 314(a).
(b) The Company and the Guarantors shall furnish to the holders of
the Notes, prospective purchasers of the Notes and securities analysts,
upon their request, the information, if any, required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.04.COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review
of the activities of the Company and its Restricted Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article 4 or
Article 5 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.05.TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
SECTION 4.06.STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every
such power as though no such law has been enacted.
SECTION 4.07.RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's or any
of its Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving the Company) or to the direct or indirect holders of the
Company's Equity Interests in their capacity as such (other than dividends
or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company); (ii) purchase, redeem or otherwise acquire or
retire for value (including without limitation, in connection with any
merger or consolidation involving the Company) any Equity Interests of the
Company (other than any such Equity Interests owned by the Company or any
Wholly Owned Restricted Subsidiary of the Company); (iii) make any payment
on or with respect to, or purchase, redeem, defease or otherwise acquire or
retire for value, any Indebtedness that is subordinated to the Notes,
except a payment of interest or principal at Stated Maturity; or (iv) make
any Restricted Investment (all such payments and other actions set forth in
clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test set forth in
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after July 21, 1997 (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
July 21, 1997 of Equity Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock or debt securities of the
Company that have been converted into such Equity Interests (other
than any such Equity Interests, Disqualified Stock or convertible debt
securities sold to a Restricted Subsidiary of the Company and other
than Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (C) to the extent that any
Restricted Investment that was made after July 21, 1997 is or was sold
for cash or otherwise liquidated or repaid for cash, the lesser of (1)
the cash return of capital with respect to such Restricted Investment
(less the cost of disposition, if any) and (2) the initial amount of
such Restricted Investment, plus (D) in the event that any
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary,
the lesser of (1) an amount equal to the fair value of the Company's
Investments in such Restricted Subsidiary and (2) the amount of
Restricted Investments previously made by the Company and its
Restricted Subsidiaries in such Unrestricted Subsidiary, plus (E) $5.0
million.
The foregoing provisions will not prohibit (a) the payment of any
dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of
this Indenture, the Series A/B Indenture, the Series D Indenture and the
Series 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 to the Company or any Wholly Owned Restricted
Subsidiary; (e) so long as no Default or Event of Default shall have
occurred and be continuing, the repurchase, redemption or other acquisition
or retirement for value of any Equity Interests of the Company held by any
employee of the Company's or any of its Restricted Subsidiaries, provided
that the aggregate price paid for all such repurchased, redeemed, acquired
or retired Equity Interests shall not exceed $500,000 in any calendar year;
and (f) the acquisition of Equity Interests of the Company in connection
with the exercise of stock options or stock appreciation rights by way of
cashless exercise or in connection with the satisfaction of withholding tax
obligations.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default.
For purposes of making such determination, all outstanding Investments by
the Company and its Restricted Subsidiaries (except to the extent repaid in
cash) in the Subsidiary so designated shall be deemed to be Restricted
Payments at the time of such designation. All such outstanding Investments
will be deemed to constitute Investments in an amount equal to the greater
of (a) the net book value of such Investments at the time of such
designation and (b) the fair market value of such Investments at the time
of such designation. Such designation shall only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such
designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of
such Unrestricted Subsidiary and such designation shall only be permitted
if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated
on a pro forma basis as if such designation had occurred at the beginning
of the four-quarter reference period, and (b) no Default or Event of
Default would be in existence following such designation.
Any designation of a Subsidiary as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of a
resolution of the Board of Directors giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
terms of the definition of Unrestricted Subsidiary set forth in this
Indenture and with this Section 4.07.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any non-cash Restricted Payment shall be
determined in the manner contemplated by the definition of the term "fair
market value," and the results of such determination shall be evidenced by
an Officers' Certificate delivered to the Trustee. Not later than the date
of making any Restricted Payment, the Company shall deliver to the Trustee
an Officers' Certificate stating that such Restricted Payment is permitted
and setting forth the basis upon which the calculations required by this
Section 4.07 were computed.
SECTION 4.08.DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a)(i) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries on
its Capital Stock or with respect to any other interest or participation
in, or measured by, its profits, or (ii) pay any Indebtedness owed to the
Company or any of its Restricted Subsidiaries, (b) make loans or advances
to the Company or any of its Restricted Subsidiaries or (c) transfer any of
its properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing under
or by reason of (1) the Credit Facility or Existing Indebtedness, each as
in effect on July 21, 1997, (2) this Indenture, the Notes, the Series A/B
Indenture , the Series A/B Notes, the Series D Indenture, the Series D
Notes, the Series F Indenture and the Series F Notes, (3) applicable law,
(4) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect
at the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred, (5) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (6) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (c) above on the property so acquired, (7)
customary provisions in bona fide contracts for the sale of property or
assets or (8) Permitted Refinancing Indebtedness with respect to any
Indebtedness referred to in clauses (1) and (2) above, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced.
SECTION 4.09.INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, "incur" or an "incurrence")
any Indebtedness and that the Company will not issue any Disqualified Stock
and will not permit any of its Restricted Subsidiaries to issue any shares
of preferred stock; provided, however, that the Company and its Restricted
Subsidiaries may incur Indebtedness, and the Company may issue Disqualified
Stock, if the Consolidated Interest Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued
would have been at least 2.25 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness or Disqualified Stock had been issued or
incurred at the beginning of such four-quarter period.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company and its Restricted Subsidiaries
of Indebtedness under the Credit Facility in an aggregate principal
amount at any one time outstanding not to exceed $65.0 million, plus
any fees, premiums, expenses (including costs of collection),
indemnities and similar amounts payable in connection with such
Indebtedness, and less any amounts repaid permanently in accordance
with Section 4.10;
(b) the incurrence by the Company and its Restricted Subsidiaries
of Existing Indebtedness;
(c) the incurrence by the Company and its Restricted Subsidiaries
of Hedging Obligations;
(d) the incurrence by the Company and its Restricted Subsidiaries
of Indebtedness represented by the Notes, the Subsidiary Guarantees,
this Indenture, the Series A/B Notes, the Series A/B Subsidiary
Guarantees, the Series A/B Indenture, the Series D Notes, the Series
D Subsidiary Guarantees, the Series D Indenture, the Series F Notes,
the Series F Subsidiary Guarantees and the Series 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 Indebtedness in exchange for, or
the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund Indebtedness that was permitted by this
Indenture to be incurred (other than pursuant to clause (a) or (e) of
this Section 4.09).
In the event that the incurrence of any Indebtedness would be
permitted by the first paragraph set forth above or one or more of the
provisions set forth in the second paragraph above, the Company may
designate (in the form of an Officers' Certificate delivered to the
Trustee) the particular provision of this Indenture pursuant to which it is
incurring such Indebtedness.
SECTION 4.10.ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (a) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value (as
determined in accordance with the definition of such term, the results of
which determination shall be set forth in an Officers' Certificate
delivered to the Trustee) of the assets or Equity Interests issued or sold
or otherwise disposed of and (b) at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; provided, however, that the amount of (i) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or such Restricted Subsidiary (other
than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any guarantee thereof) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from further
liability and (ii) any securities, notes or other obligations received by
the Company or such Restricted Subsidiary from such transferee that are
immediately converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received) shall be deemed to be cash for
purposes of this Section 4.10.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or any such Restricted Subsidiary may apply such Net
Proceeds to (a) permanently repay the principal of any secured Indebtedness
(to the extent of the fair value of the assets securing such Indebtedness,
as determined by the Board of Directors) or (b) to acquire (including by
way of a purchase of assets or stock, merger, consolidation or otherwise)
Productive Assets. (Any such Net Proceeds that are applied to the
acquisition of Productive Assets pursuant to any binding agreement to
construct any new marine vessel useful in the business of the Company or
any of its Restricted Subsidiaries shall be deemed to have been applied for
such purpose within such 365-day period so long as they are so applied
within 18 months of the effective date of such agreement but no later than
two years after the date of receipt of such Net Proceeds.) Pending the
final application of any such Net Proceeds, the Company or any such
Restricted Subsidiary may temporarily reduce outstanding revolving credit
borrowings, including borrowings under the Credit Facility, or otherwise
invest such Net Proceeds in any manner that is not prohibited by this
Indenture, the Series A/B Indenture, the Series D Indenture and the Series
F Indenture. Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the first sentence of this paragraph shall be
deemed to constitute "Excess Proceeds." Within 30 days of each date on
which the aggregate amount of Excess Proceeds exceeds $5.0 million, the
Company shall commence a pro rata Asset Sale Offer pursuant to Section 3.09
hereof to purchase the maximum principal amount of Notes that may be
purchased out of Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon, to the date of purchase, in accordance with the
procedures set forth in Section 3.09 hereof; provided, however, that, if
the Company is required to apply such Excess Proceeds to repurchase, or to
offer to repurchase, any Pari Passu Indebtedness, the Company shall only be
required to offer to repurchase the maximum principal amount of Notes that
may be purchased out of the amount of such Excess Proceeds multiplied by a
fraction, the numerator of which is the aggregate principal amount of Notes
outstanding and the denominator of which is the aggregate principal amount
of Notes outstanding plus the aggregate principal amount of Pari Passu
Indebtedness outstanding. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the amount that the
Company is required to repurchase, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate amount of Notes
surrendered by holders thereof exceeds the amount that the Company is
required to repurchase, the Trustee shall select the Notes to be purchased
on a pro rata basis (with such adjustments as may be deemed appropriate by
the Trustee so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased). Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero. For
purposes of this paragraph only, any reference herein to "Notes" shall be
deemed to include the Notes and the Series A/B Notes, the Series D Notes
and the Series F Notes.
SECTION 4.11.TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms that are
no less favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person or, if there
is no such comparable transaction, on terms that are fair and reasonable to
the Company or such Restricted Subsidiary, and (b) the Company delivers to
the Trustee (i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
of $1.0 million, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies
with clause (a) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $5.0
million, other than any such transactions with a joint venture engaged in
the business of providing marine support vessels and related services to
the oil and gas industry (or a business that is reasonably complementary or
related thereto as determined in good faith by the Board of Directors), an
opinion as to the fairness to the Company or the relevant Subsidiary of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm that is, in the judgment
of the Board of Directors, qualified to render such opinion and is
independent with respect to the Company; provided, however, that the
following shall be deemed not to be Affiliate Transactions: (A) any
employment agreement or other employee compensation plan or arrangement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business of the Company or such Restricted Subsidiary;
(B) transactions between or among the Company and its Restricted
Subsidiaries; (C) Permitted Investments and Restricted Payments that are
permitted by the provisions of this Indenture; (D) loans or advances to
officers, directors and employees of the Company or any Restricted
Subsidiary made in the ordinary course of business and consistent with past
practices of the Company and its Restricted Subsidiaries in an aggregate
amount not to exceed $500,000 outstanding at any one time; (E) indemnities
of officers, directors and employees of the Company or any Restricted
Subsidiary permitted by bylaw or statutory provisions; and (F) the payment
of reasonable and customary regular fees to directors of the Company or any
of its Restricted Subsidiaries who are not employees of the Company or any
Affiliate.
SECTION 4.12.LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired, or any income
or profits therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens, to secure (a) any Indebtedness of the
Company or such Restricted Subsidiary (if it is not also a Guarantor),
unless prior to, or contemporaneously therewith, the Notes are equally and
ratably secured, or (b) any Indebtedness of any Guarantor, unless prior to,
or contemporaneously therewith, the Subsidiary Guarantees are equally and
ratably secured; provided, however, that if such Indebtedness is expressly
subordinated to the Notes or the Subsidiary Guarantees, the Lien securing
such Indebtedness will be subordinated and junior to the Lien securing the
Notes or the Subsidiary Guarantees, as the case may be, with the same
relative priority as such Indebtedness has with respect to the Notes or the
Subsidiary Guarantees.
SECTION 4.13.ADDITIONAL SUBSIDIARY GUARANTEES.
(a) If the Company or any of its Restricted Subsidiaries shall, after
July 21, 1997, acquire or create another Significant Subsidiary, or (b) if,
after such date, a Restricted Subsidiary shall provide a guarantee under
the Credit Facility or incur any Funded Indebtedness, then such newly
acquired or created Significant Subsidiary or such Subsidiary described in
clause (b) above shall execute a Subsidiary Guarantee and deliver an
Opinion of Counsel and an Officers' Certificate in accordance with the
terms of Section 10.02 of this Indenture.
SECTION 4.14.CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Restricted Subsidiary; provided, however, that the
Company shall not be required to preserve the existence of any of its
Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Restricted Subsidiaries, taken as a whole.
SECTION 4.15.OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
an offer price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the date of
repurchase (the "Change of Control Payment"). Within 30 days following a
Change of Control, the Company shall mail a notice to each Holder and the
Trustee stating: (1) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes validly tendered and not
withdrawn will be accepted for payment; (2) the purchase price and the
purchase date, which shall be no earlier than 30 days but no later than 60
days from the date such notice is mailed (the "Change of Control Payment
Date"); (3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date; (5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, properly endorsed for transfer, together with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes completed
and such customary documents as the Company may reasonably request, to the
Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment
Date; (6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal
to $1,000 in principal amount or an integral multiple thereof. If any of
the Notes subject to a Change of Control Offer is in the form of a Global
Note, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depository applicable to repurchases.
Further, the Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
the repurchase of Notes as a result of a Change of Control.
(b) On or before 10:00 a.m. New York time on the Change of Control
Payment Date, the Company shall, to the extent lawful, (a) accept for
payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (b) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or portions
thereof so tendered and (c) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to each holder of Notes
so tendered the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided, however,
that each such new Note will be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results
of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(c) The Change of Control provisions described above shall be
applicable whether or nor any other provisions of this Indenture are
applicable.
(d) The Company shall not be required to make a Change of Control
Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the time and otherwise in compliance with
the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer.
SECTION 4.16.ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY OWNED
RESTRICTED SUBSIDIARIES.
The Company (i) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, or
otherwise dispose of any Capital Stock of any Wholly Owned Restricted
Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), unless (a) such transfer,
conveyance, sale, or other disposition is of all the Capital Stock of such
Wholly Owned Restricted Subsidiary and (b) the Net Proceeds from such
transfer, conveyance, sale, or other disposition are applied in accordance
with Section 4.10 hereof, and (ii) shall not permit any Wholly Owned
Restricted Subsidiary of the Company to issue any of its Equity Interests
to any Person other than to the Company or a Wholly Owned Restricted
Subsidiary of the Company; except, in the case of both clauses (i) and (ii)
above, with respect to (1) dispositions or issuances by a Wholly Owned
Restricted Subsidiary of the Company as contemplated in clauses (a) and (b)
of the definition of "Wholly Owned Restricted Subsidiary" or (2) other
dispositions or issuances of up to 35% of the outstanding Capital Stock of
a Wholly Owned Restricted Subsidiary of the Company, provided that, after
giving pro forma effect thereto, the Investment of the Company and its
Wholly Owned Restricted Subsidiaries in all Restricted Subsidiaries that
are not Wholly Owned Restricted Subsidiaries of the Company, determined on
a consolidated basis in accordance with GAAP, does not exceed 15% of
Consolidated Net Tangible Assets of the Company.
SECTION 4.17.SALE-AND-LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale-and-leaseback transaction; provided,
however, that the Company or any Restricted Subsidiary, as applicable, may
enter into a sale-and-leaseback transaction if (i) the Company or such
Restricted Subsidiary could have (a) incurred Indebtedness in an amount
equal to the Attributable Indebtedness relating to such sale-and-leaseback
transaction pursuant to the Consolidated Interest Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof and (b) incurred a Lien
to secure such Indebtedness pursuant to Section 4.12 hereof, (ii) the gross
cash proceeds of such sale-and-leaseback transaction are at least equal to
the fair market value (as determined in accordance with the definition of
such term, the results of which determination shall be set forth in an
Officers' Certificate delivered to the Trustee) of the property that is the
subject of such sale-and-leaseback transaction and (iii) the transfer of
assets in such sale-and-leaseback transaction is permitted by, and the
Company applies the proceeds of such transaction in compliance with,
Section 4.10 hereof.
SECTION 4.18.NO INDUCEMENTS.
The Company shall not, and the Company shall not permit any of its
Subsidiaries, either directly or indirectly, to pay (or cause to be paid)
any consideration, whether by way of interest, fee or otherwise, to any
Holder for or as an inducement to any consent, waiver, amendment or
supplement of any terms or provisions of this Indenture or the Notes,
unless such consideration is offered to be paid (or agreed to be paid) to
all Holders which so consent, waive or agree to amend or supplement in the
time frame set forth on solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.01.MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (a) the Company is the surviving corporation or the Person formed by
or surviving any such consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia, (b) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the Notes and
this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee, (c) immediately after such transaction no
Default or Event of Default exists and (d) except in the case of a merger
of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company, the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made (A) will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction and (B) will, at the time of
such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test set forth in the
first paragraph of Section 4.09 hereof.
In connection with any consolidation, merger or disposition
contemplated by this provision, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or disposition and the supplemental
indenture in respect thereto comply with this provision and that all
conditions precedent in the Indenture provided for relating to such
transaction or transactions have been complied with.
SECTION 5.02.SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in accordance with Section 5.01 hereof,
the successor corporation formed by such consolidation or into or with
which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition,
the provisions of this Indenture referring to the "Company" shall refer
instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein; provided, however, that the predecessor Company shall not be
relieved from its obligations under this Indenture or the Notes in the case
of any such lease.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01.EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on
the Notes, and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of
or premium, if any, on the Notes;
(c) the Company fails to comply with any of the provisions of
Section 4.10, 4.15 or 5.01 hereof;
(d) the Company fails to observe or perform any other covenant or
other agreement in this Indenture or the Notes for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding of such failure;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or was created after July 21,
1997, which default (i) is caused by a failure to pay principal of or
premium or interest on such Indebtedness prior to the expiration of
any grace period provided in such Indebtedness (a "Payment Default")
or (ii) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $5.0 million or
more; and provided, further, that if such default is cured or waived
or any such acceleration rescinded, or such Indebtedness is repaid,
within a period of 10 days from the continuation of such default
beyond the applicable grace period or the occurrence of such
acceleration, as the case may be, an Event of Default and any
consequential acceleration of the Notes shall be automatically
rescinded, so long as such rescission does not conflict with such
judgment or decree;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company or any of its Restricted Subsidiaries and such judgment or
judgments are not paid or discharged for a period (during which
execution shall not be effectively stayed) of 60 days, provided that
the aggregate of all such undischarged judgments exceeds $5.0 million;
(g) the failure of any Guarantor to perform any covenant set
forth in its Subsidiary Guarantee or the repudiation by any Guarantor
of its obligations under its Subsidiary Guarantee or the
unenforceability of any Subsidiary Guarantee for any reason;
(h) the Company or any Guarantor pursuant to or within the
meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any Guarantor
in an involuntary case;
(ii) appoints a Custodian of the Company or any
Guarantor or for all or substantially all of the property of
the Company or any Guarantor; or
(iii) orders the liquidation of the Company or any
Guarantor;
and the order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 6.02.ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause
(h) or (i) of Section 6.01 hereof occurs with respect to the Company or any
Guarantor, all outstanding Notes shall be due and payable immediately
without further action or notice. The Holders of a majority in principal
amount of the then outstanding Notes by written notice to the Trustee may
on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of
principal, interest or premium, if any, that have become due solely because
of the acceleration) have been cured or waived.
If an Event of Default occurs by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, then, upon acceleration of the Notes, an equivalent
premium shall also become and be immediately due and payable, to the extent
permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding.
SECTION 6.03.OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of and
premium, if any, and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
SECTION 6.04.WAIVER OF PAST DEFAULTS.
Holders of a majority in principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment
of the principal of or premium or interest, if any, on the Notes (including
in connection with an offer to purchase). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other Default or impair
any right consequent thereon.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Notes for or as an
inducement to any consent, waiver or amendment of any terms or provisions
of the Indenture or the Notes, unless such consideration is offered to be
paid or agreed to be paid to all holders of the Notes which so consent,
waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
SECTION 6.05.CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.
SECTION 6.06.LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07.RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of and premium, if
any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase),
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08.COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and, interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
SECTION 6.09.TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 6.10.PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the Trustee's costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and interest, if any,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11.UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01.DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
SECTION 7.02.RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall have no duty to inquire as to the performance
of the Company's covenants in Article 4 hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default
except: (1) any Event of Default occurring pursuant to Section 6.01(a) or
6.01(b) hereof; or (2) any Default or Event of Default of which is
Responsible Officer shall have received written notification or obtained
actual knowledge.
SECTION 7.03.INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Guarantor or any Affiliate of the Company with the same rights it would
have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as trustee or resign.
Any Agent may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04.TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not
be accountable for the Company's use of the proceeds from the Notes or any
money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.05.NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the
Holders of the Notes.
SECTION 7.06.REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with May 15, 1999 and for
so long as Notes remain outstanding, the Trustee shall mail to the Holders
of the Notes a brief report dated as of such reporting date that complies
with TIA <section> 313(a) (but if no event described in TIA
<section> 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall
comply with TIA <section> 313(b)(2) and <section> 313(b)(1). The Trustee
shall also transmit by mail all reports as required by TIA
<section> 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA
<section> 313(d). The Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange.
SECTION 7.07.COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder.
The Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company, any Guarantor or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent
any such loss, liability or expense may be attributable to its negligence,
bad faith or willful misconduct. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company or the
Guarantors of their obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA
<section> 313(b)(2) to the extent applicable.
SECTION 7.08.REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes
of a majority in principal amount of the then outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, provided all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.09.SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee. As soon as practicable, the successor Trustee shall
mail a notice of its succession to the Company and the Holders of the
Notes.
SECTION 7.10.ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America
or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of
at least $100 million as set forth in its most recent published annual
report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA <section> 310(a)(1), (2) and (5). The Trustee is
subject to TIA <section> 310(b).
SECTION 7.11.PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA <section> 311(a), excluding any creditor
relationship listed in TIA <section> 311(b). A Trustee who has resigned or
been removed shall be subject to TIA <section> 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01.OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, exercise
its rights under either Section 8.02 or 8.03 hereof with respect to all
outstanding Notes upon compliance with the conditions set forth below in
this Article 8.
SECTION 8.02.LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have discharged its obligations with respect to all outstanding Notes,
and each Guarantor shall be deemed to have discharged its obligations with
respect to its Subsidiary Guarantee, on the date the conditions set forth
in Section 8.04 below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the
outstanding Notes, and each Guarantor shall be deemed to have paid and
discharged its Subsidiary Guarantee (which in each case shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Indenture referred to in (a) and (b) below) and
to have satisfied all its other obligations under such Notes or Subsidiary
Guarantee and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of and premium, if any, and interest on such
Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Sections 2.03, 2.04, 2.07, 2.10 and 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and
(d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
SECTION 8.03.COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in
Article 4 (other than those in Sections 4.01, 4.02, 4.06 and 4.14) and in
clauses (c) and (d) of Section 5.01 hereof on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company
and any Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(e)
through 6.01(g) hereof shall not constitute Events of Default.
SECTION 8.04.CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the
principal of and premium and interest, if any, on the outstanding
Notes on the stated maturity thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether the
Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since July 21, 1997, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the incurrence of Indebtedness, all or a
portion of the proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence or within
30 days thereof);
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by
which the Company or any of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be based on such solvency certificates or solvency
opinions as counsel deems necessary or appropriate) to the effect that
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
SECTION 8.05.DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee
pursuant to Section 8.04 hereof in respect of the outstanding Notes shall
be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06.REPAYMENT TO COMPANY.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such
principal, and premium or interest has become due and payable shall be paid
to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter,
as a secured creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 8.07.REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with
Section 8.05 hereof, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with
Section 8.05 hereof; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following
the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01.WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Notes pursuant to Article 5 hereof;
(d) to secure the Notes pursuant to the requirements of Section
4.12 or otherwise;
(e) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Note;
(f) to comply with Article 10 hereof; or
(g) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company
and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.02.WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture and the
Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for the Notes), and, subject
to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
or compliance with any provision of this Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with
a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company and the
Guarantors in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby
a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07
hereof, the Holders of a majority in principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Notes. However, without the
consent of each Holder affected, an amendment or waiver may not (with
respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter any of the provisions with respect to the redemption of
the Notes (except as provided in Sections 3.09, 4.10 and 4.15 hereof);
(c) reduce the rate of or change the time for payment of interest
on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium or interest, if any, on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or Events of Default or the rights of
Holders of Notes to receive payments of principal of or premium or
interest, if any, on the Notes (except as permitted in clause (g)
below);
(g) waive a redemption payment with respect to any Note (other
than a payment required by Sections 4.10 and 4.15 hereof);
(h) alter the ranking of the Notes relative to other Indebtedness
of the Company; or
(i) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.03.COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental Indenture that complies with the TIA
as then in effect.
SECTION 9.04.REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note
and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the
consent is not made on any Note. However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
SECTION 9.05.NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06.TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Company may not sign an amendment or supplemental indenture
until the Board of Directors approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and
(subject to Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution
of such amended or supplemental indenture is authorized or permitted by
this Indenture.
ARTICLE 10
GUARANTEE OF NOTES
SECTION 10.01. SUBSIDIARY GUARANTEE.
Subject to Section 10.06 hereof, the Guarantors hereby, jointly and
severally, unconditionally guarantee to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture,
the Notes held thereby and the Obligations of the Company hereunder and
thereunder, that: (a) the principal of and premium and interest, if any, on
the Notes will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, and (to the
extent permitted by law) interest, if any, on the Notes, and all other
payment Obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full and performed, all in
accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so
guaranteed or any performance so guaranteed for whatever reason the
Guarantors will be jointly and severally obligated to pay the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under the Subsidiary Guarantees, and shall
entitle the Holders to accelerate the Obligations of the Guarantors
hereunder in the same manner and to the same extent as the Obligations of
the Company. The Guarantors hereby agree that their Obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance (other
than complete performance) which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor further, to
the extent permitted by law, hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that
this Subsidiary Guarantee will not be discharged except by complete
performance of the Obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, or any Custodian, Trustee or other
similar official acting in relation to either the Company or the
Guarantors, any amount paid by the Company or any Guarantor to the Trustee
or such Holder, this Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
agrees that it shall not be entitled to, and hereby waives, any right of
subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (a) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of its
Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed thereby, and (b) in the event of any declaration of acceleration
of such Obligations as provided in Article 6 hereof, such Obligations
(whether or not due and payable) shall forthwith become due and payable by
the Guarantor for the purpose of its Subsidiary Guarantee. The Guarantors
shall have the right to seek contribution from any non-paying Guarantor so
long as the exercise of such right does not impair the rights of the
Holders under the Subsidiary Guarantees.
SECTION 10.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 10.01
hereof, each Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form of Exhibit B hereto shall be endorsed
by manual or facsimile signature by an Officer of such Guarantor on each
Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by an Officer of such
Guarantor.
To the extent required by the provisions of Section 4.13 hereof, the
Company shall cause each of its Restricted Subsidiaries to execute a
Subsidiary Guarantee substantially in the form of Exhibit B. Such
Subsidiary Guarantee shall be accompanied by a supplemental indenture
substantially in the form of Exhibit C, along with the Opinion of Counsel
and Officers' Certificate required under Section 9.06 of this Indenture;
provided, however, that any Subsidiary that has been properly designated as
an Unrestricted Subsidiary in accordance with this Indenture need not
execute a Subsidiary Guarantee for so long as it continues to constitute an
Unrestricted Subsidiary.
Each Guarantor hereby agrees that its Subsidiary Guarantee shall
remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on the Subsidiary Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary
Guarantee set forth in this Indenture on behalf of the Guarantors.
SECTION 10.03. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture shall prohibit a merger between a Guarantor and another
Guarantor or a merger between a Guarantor and the Company.
(b) No Guarantor shall consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person
(other than the Company or another Guarantor), whether or not affiliated
with such Guarantor, unless, (i) subject to the provisions of Section 10.04
hereof, the Person formed by or surviving any such consolidation or merger
(if other than such Guarantor) assumes all the obligations of such
Guarantor pursuant to a supplemental indenture, substantially in the form
of Exhibit C hereto, under the Notes and this Indenture; (ii) immediately
after giving effect to such transaction, no Default or Event of Default
exists; (iii) such Guarantor, or any Person formed by or surviving any such
consolidation or merger, would have Consolidated Net Worth (immediately
after giving effect to such transaction), equal to or greater than the
Consolidated Net Worth of such Guarantor immediately preceding the
transaction; and (iv) the Company, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred
at the beginning of the applicable four-quarter period, would be permitted
to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in the first paragraph
of Section 4.09 hereof.
(c) In the case of any such consolidation or merger and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and substantially in the form of Exhibit C hereto,
of the Subsidiary Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor; provided, however, that, solely for purposes of
computing Consolidated Net Income for purposes of clause (c) of the first
paragraph of Section 4.07 hereof, the Consolidated Net Income of any Person
other than the Company and its Restricted Subsidiaries shall only be
included for periods subsequent to the effective time of such merger or
consolidation. Such successor Person thereupon may cause to be signed any
or all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All of the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under
this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at July 21, 1997.
SECTION 10.04. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the assets or
Capital Stock of any Guarantor, by way of merger, consolidation or
otherwise, then such Guarantor (in the event of a sale or other
disposition, by way of such a merger, consolidation or otherwise, of all of
the Capital Stock of such Guarantor) or the Person acquiring the property
(in the event of a sale or other disposition of all of the assets of such
Guarantor) shall be released and relieved of any obligations under its
Subsidiary Guarantee; provided, however, that (i) in the event such
transaction constitutes an Asset Sale, the Net Proceeds from such sale or
other disposition are treated in accordance with the provisions of Section
4.10 hereof and (ii) the Company is in compliance with all other provisions
of this Indenture applicable to such disposition. Upon delivery by the
Company to the Trustee of an Officers' Certificate to the effect of the
foregoing, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its Obligation under
its Subsidiary Guarantee. Any Guarantor not released from its Obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and premium and interest, if any, on the Notes and for the
other Obligations of such Guarantor under this Indenture as provided in
this Article 10.
SECTION 10.05. RELEASES FOLLOWING DESIGNATION AS AN UNRESTRICTED
SUBSIDIARY.
In the event that the Company designates a Guarantor to be an
Unrestricted Subsidiary, then such Guarantor shall be released and relieved
of any obligations under its Subsidiary Guarantee; provided that such
designation is conducted in accordance with this Indenture.
SECTION 10.06. LIMITATION ON GUARANTOR LIABILITY.
For purposes hereof, each Guarantor's liability shall be limited to
the lesser of (a) the aggregate amount of the Obligations of the Company
under the Notes and this Indenture, (b) the amount, if any, which would not
have (i) rendered such Guarantor "insolvent" (as such term is defined in
the Bankruptcy Law) or (ii) left such Guarantor with unreasonably small
capital at the time its Subsidiary Guarantee of the Notes was entered into
and (c) in the case of Saevik Supply ASA and Saevik Shipping AS, the
maximum amount permitted under Norwegian law; provided, however, that, it
will be a presumption in any lawsuit or other proceeding in which a
Guarantor is a party that the amount guaranteed pursuant to the Subsidiary
Guarantee is the amount set forth in clause (a) above unless any creditor,
or representative of creditors of such Guarantor, or debtor in possession
or trustee in bankruptcy of the Guarantor, otherwise proves in such a
lawsuit that the aggregate liability of the Guarantor is the amount set
forth in clauses (b) or (c) above. In making any determination as to
solvency or sufficiency of capital of a Guarantor in accordance with the
previous sentence, the right of such Guarantor to contribution from other
Guarantors, and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.
SECTION 10.07. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 10 shall in each case (unless the context
shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully and for all intents and purposes
as if such Paying Agent were named in this Article 10 in place of the
Trustee.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA <section>318(c), the imposed duties shall
control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in person
or mailed by first class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to the Company or the Guarantors:
Trico Marine Services, Inc.
2401 Fountain View, Suite 920
Houston, Texas 77057
Attention: Victor M. Perez
Telecopier No.: (713) 780-0062
With a copy to:
Jones, Walker, Waechter, Poitevent, Carre`re & Dene`gre, L.L.P.
201 St. Charles Avenue, Suite 5100
New Orleans, Louisiana 70170-5100
Attention: William B. Masters
Telecopier No.: (504) 582-8430
If to the Trustee:
(1) For payment, registration, transfer and exchange of the
Notes:
BY HAND:
Chase Bank of Texas, National Association
One Main Place
1201 Main Street, 18th Floor
Dallas, Texas 75202
Telephone No.: (214) 672-5125 or (800) 275-2048
Telecopier No.: (214) 672-5746
Attention: Registered Bond Events
BY MAIL:
Chase Bank of Texas, National Association
P.O. Box 2320
Dallas, Texas 75221-2320
Telephone No.: (214) 672-5125 or (800) 275-2048
Telecopier No.: (214) 672-5746
Attention: Registered Bond Events
(2) For all other communications relating the Notes:
Chase Bank of Texas, National Association
Global Trust Services
600 Travis Street, Suite 1150
Houston, Texas 77002
Telephone No.: (713) 216-5811
Telecopier No.: (713) 216-5476
Attention: Ms. Mauri J. Cowen
If to the Paying Agent:
Chase Bank of Texas, National Association
c/o Chase Bank of Texas Trust Company of New York
55 Water Street, North Building
Room 234, Windows 20 and 21
New York, New York 10041
Telephone No.: (212) 638-4020 or 638-4021
Telecopier No.: (212) 638-7267
The Company, any of the Guarantors or the Trustee, by notice to the
others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA <section> 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA <section> 312(b) with other
Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA <section> 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA <section> 314(a)(4)) shall comply with
the provisions of TIA <section> 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the
Notes, the Subsidiary Guarantees, this Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Restricted Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and
the Notes shall bind their successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
-1-
SIGNATURES
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
------------------------
Name: Victor M. Perez
Title: Vice President and
Chief Financial Officer
TRICO MARINE ASSETS, INC.
By: /s/ Victor M. Perez
------------------------
Name: Victor M. Perez
Title: Vice President and
Chief Financial Officer
TRICO MARINE OPERATORS, INC.
By: /s/ Victor M. Perez
------------------------
Name: Victor M. Perez
Title: Vice President and
Chief Financial Officer
TRICO MARINE INTERNATIONAL HOLDINGS B.V.
By: /s/ Ronald O. Palmer
------------------------
Name: Ronald O. Palmer
Title: Director
SAEVIK SUPPLY ASA
By: /s/ Widar Salbuvik
------------------------
Name: Widar Salbuvik
Title: Chairman of the Board
SAEVIK SHIPPING AS
By: /s/ Jon Arild Goksoyr
------------------------
Name: Jon Arild Goksoyr
Title: Chairman/Managing Director
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Mauri J. Cowen
------------------------
Name: Mauri J. Cowen
Title: Vice President and
Trust Officer
-2-
EXHIBIT A-1
(Face of Note)
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
No. $_______________
CUSIP NO.
TRICO MARINE SERVICES, INC.
promises to pay to __________ or registered assigns, the principal sum of
___________ Dollars on August 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
(SEAL)
TRICO MARINE SERVICES, INC.
By__________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Trustee
By________________________________
Authorized Signatory
Dated: ______________________
A-1-1
(Back of Note)
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such
successor Depository. Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Water Street,
New York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as may be requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL in as much as the registered owner hereof, Cede &
Co., has an interest herein.]{1}
**FOOTNOTES**
1. This paragraph should be included only if the Note is issued in global
form.
A-1-2
1. INTEREST. Trico Marine Services, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Note at 8 1/2 % per annum from the date on which interest was last paid on
the Series A/B Note, Series D Note, Series F Note or Note for which this
Note was issued in exchange until maturity. The Company will pay interest
semi-annually in arrears on February 1 and August 1 of each year,
commencing February 1, 1999, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which
interest has been paid on the Series A/B Note, Series D Note, Series F Note
or Note for which this Note was issued in exchange; provided that if there
is no existing Default or Event of Default in the payment of interest, and
if this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time
on demand at a rate that is the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the January 15 or July 15 next preceding
the Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and interest, if any, at the
office or agency of the Company maintained for such purpose within the City
and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, and provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of and interest and premium, if any, on all Global Notes and all
other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Chase Bank of Texas,
National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may
act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of September 22, 1998 ("Indenture") among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S.
Code <section><section> 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured obligations of
the Company limited in aggregate principal amount to $280,000,000 issued
on the Issue Date and additional principal amounts issuable thereafter
subject to the terms of the Indenture.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to August 1,
2001. Thereafter, the Company shall have the option to redeem the Notes,
in whole or in part, upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on
August 1 of the years indicated below:
YEAR PERCENTAGE
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5 the Company may at any time prior to August 1, 2001, at its
option, redeem the Notes, in whole or in part, at the Make-Whole Price plus
accrued and unpaid interest, if any, thereon to the redemption date. In
addition, at any time prior to July 17, 2000, the Company may redeem up to
35% of the aggregate principal amount of Notes originally issued at a
redemption price of 108.5% of the principal amount thereof, plus accrued
and unpaid interest, if any, thereon to the redemption date, with the net
cash proceeds of one or more Qualified Equity Offerings; provided that (a)
at least $182.0 million in aggregate principal amount of Notes remain
outstanding immediately after the occurrence of each such redemption and
(b) each such redemption shall occur within 60 days of the date of the
closing of each such Qualified Equity Offering. For purposes of this
paragraph only, any reference herein to "Notes" shall be deemed to include
the Notes and the Series A/B Notes, the Series D Notes and the Series F
Notes.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, thereon to the date of purchase
(the "Change of Control Payment"). Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the
transaction that constitutes the Change of Control and setting forth the
procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales, within 30 days of each date on which the aggregate amount of Excess
Proceeds exceeds $5.0 million, the Company shall commence an offer to all
Holders of Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture; provided, however, that, if the
Company is required to apply such Excess Proceeds to repurchase, or to
offer to repurchase, any Pari Passu Indebtedness, the Company shall only be
required to offer to repurchase the maximum principal amount of Notes that
may be purchased out of the amount of such Excess Proceeds multiplied by a
fraction, the numerator of which is the aggregate principal amount of Notes
outstanding and the denominator of which is the aggregate principal amount
of Notes outstanding plus the aggregate principal amount of Pari Passu
Indebtedness outstanding. To the extent that the aggregate amount of
Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased). For purposes of this paragraph only, any references to the
"Notes" shall be deemed to include the Notes and the Series A/B Notes, the
Series D Notes and the Series F Notes. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes .
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes
to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture or the
Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in
place of certificated Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to
the Holders of the Notes or that does not adversely affect the legal rights
under the Indenture of any such Holder, or to comply with the requirements
of the Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on the Notes; (ii) default
in payment when due of the principal of or premium, if any, on the Notes;
(iii) failure by the Company to comply with Section 4.10, 4.15 or 5.01 of
the Indenture; (iv) failure by the Company for 60 days after notice to
comply with any of its other agreements in the Indenture or the Notes; (v)
default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Restricted Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or guarantee now exists or is
created after July 21, 1997, which default (a) is caused by a failure to
pay principal of or premium or interest on such Indebtedness prior to the
expiration of any grace period provided in such Indebtedness (a "Payment
Default") or (b) results in the acceleration of such Indebtedness prior to
its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5.0 million or more; and
provided, further, that if such default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid within a period of
10 days from the continuation of such default beyond the applicable grace
period or the occurrence of such acceleration, as the case may be, an Event
of Default and any consequential acceleration of the Notes shall be
automatically rescinded, so long as said rescission does not conflict with
such judgment or decree; (vi) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments aggregating in excess of
$5.0 million, which judgments are not paid, discharged or stayed for a
period of 60 days; (vii) failure by any Guarantor to perform any covenant
set forth in its Subsidiary Guarantee, or the repudiation by any Guarantor
of its obligations under its Subsidiary Guarantee or the unenforceability
of any Subsidiary Guarantee against a Guarantor for any reason; and (viii)
certain events of bankruptcy or insolvency with respect to the Company or
any Guarantor. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Notes will
become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except
a continuing Default or Event of Default in the payment of the principal of
or premium or interest, if any, on the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default
or Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. DEFEASANCE. The Notes are subject to defeasance upon the terms
and conditions specified in the Indenture.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such,
shall not have any liability for any obligations of the Company or any
Guarantor under the Notes, the Subsidiary Guarantees or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
the issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. DEFINITIONS. Capitalized terms used herein, but not otherwise
defined herein, are used with the meanings ascribed to them in the
Indenture.
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Trico Marine Services, Inc.
2401 Fountain View
Suite 920
Houston, Texas 77057
Attention: Corporate Secretary
A-1-3
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
A-1-4
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No.:
Signature Guarantee:
A-1-5
SCHEDULE OF EXCHANGES OF NOTES{2}
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR OTHER NOTES HAVE
BEEN MADE:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Amount
Amount of increase of this Global Signature of
Amount of decrease in principal Note following authorized officer
in Principal Amount Amount of this such decrease (or of Trustee or Note
Date of Exchange of this Global Note Global Note increase) Custodian
- ---------------- ------------------- ------------------ ----------------- -------------------
</TABLE>
**FOOTNOTES**
2. This should be included only if the Note is issued in global
form.
A-1-6
EXHIBIT B
SUBSIDIARY GUARANTEE
Subject to Section 10.06 of the Indenture,
each Guarantor hereby, jointly and severally,
unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of
the Indenture, the Notes and the Obligations of
the Company under the Notes or under the
Indenture, that: (a) the principal of, premium and
interest, if any, on the Notes will be promptly
paid in full when due, subject to any applicable
grace period, whether at maturity, by
acceleration, redemption or otherwise, and
interest on overdue principal, premium, if any,
(to the extent permitted by law) and interest on
any interest, if any, on the Notes and all other
payment Obligations of the Company to the Holders
or the Trustee under the Indenture or under the
Notes will be promptly paid in full and performed,
all in accordance with the terms thereof; and (b)
in case of any extension of time of payment or
renewal of any Notes or any of such other payment
Obligations, the same will be promptly paid in
full when due or performed in accordance with the
terms of the extension or renewal, subject to any
applicable grace period, whether at stated
maturity, by acceleration, redemption or
otherwise. Failing payment when so due of any
amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors
will be jointly and severally obligated to pay the
same immediately. An Event of Default under the
Indenture or the Notes shall constitute an event
of default under this Subsidiary Guarantee, and
shall entitle the Holders to accelerate the
Obligations of the Guarantors hereunder in the
same manner and to the same extent as the
Obligations of the Company. The Guarantors hereby
agree that their Obligations hereunder shall be
unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder with
respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any
action to enforce the same or any other
circumstance which might otherwise constitute a
legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants
that this Subsidiary Guarantee will not be
discharged except by complete performance of the
Obligations contained in the Notes and the
Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to
the Company, the Guarantors, or any Note
Custodian, Trustee, liquidator or other similar
official acting in relation to either the Company
or the Guarantors, any amount paid by the Company
or any Guarantor to the Trustee or such Holder,
this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in
full force and effect. Each Guarantor agrees that
it shall not be entitled to, and hereby waives,
any right of subrogation in relation to the
Holders in respect of any Obligations guaranteed
hereby. Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (a)
the maturity of the Obligations guaranteed hereby
may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in
respect of the Obligations guaranteed thereby, and
(b) in the event of any declaration of
acceleration of such Obligations as provided in
Article 6 of the Indenture, such Obligations
(whether or not due and payable) shall forthwith
become due and payable by the Guarantor for the
purpose of this Subsidiary Guarantee. The
Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long
as the exercise of such right does not impair the
rights of the Holders under the Subsidiary
Guarantees.
The obligations of the Guarantor to the
Holders and to the Trustee pursuant to this
Subsidiary Guarantee and the Indenture are
expressly set forth in Article 10 of the
Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary
Guarantee. The terms of Articles 10 of the
Indenture are incorporated herein by reference.
This Subsidiary Guarantee is subject to release as
and to the extent provided in Sections 10.04 and
10.05 of the Indenture.
This is a continuing Guarantee and shall
remain in full force and effect and shall be
binding upon each Guarantor and its respective
successors and assigns to the extent set forth in
the Indenture until full and final payment of all
of the Company's Obligations under the Notes and
the Indenture and shall inure to the benefit of
the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee,
the rights and privileges herein conferred upon
that party shall automatically extend to and be
vested in such transferee or assignee, all subject
to the terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a
guarantee of collection.
This Subsidiary Guarantee shall not be valid
or obligatory for any purpose until the
certificate of authentication on the Note upon
which this Subsidiary Guarantee is noted shall
have been executed by the Trustee or an
authenticating agent under the Indenture by the
manual signature of one of its authorized
officers.
For purposes hereof, each Guarantor's
liability shall be limited to the lesser of (i)
the aggregate amount of the Obligations of the
Company under the Notes and the Indenture and (ii)
the amount, if any, which would not have (A)
rendered such Guarantor "insolvent" (as such term
is defined in the Bankruptcy Law and in the Debtor
and Creditor Law of the State of New York) or (B)
left such Guarantor with unreasonably small
capital at the time its Subsidiary Guarantee of
the Notes was entered into and (c) in the case of
Saevik Supply ASA and Saevik Shipping AS, the
maximum amount permitted under Norwegian law;
provided that, it will be a presumption in any
lawsuit or other proceeding in which a Guarantor
is a party that the amount guaranteed pursuant to
the Subsidiary Guarantee is the amount set forth
in clause (i) above unless any creditor, or
representative of creditors of such Guarantor, or
debtor in possession or trustee in bankruptcy of
such Guarantor, otherwise proves in such a lawsuit
that the aggregate liability of the Guarantor is
limited to the amount set forth in clauses (ii) or
(iii) above. The Indenture provides that, in
making any determination as to the solvency or
sufficiency of capital of a Guarantor in
accordance with the previous sentence, the right
of such Guarantors to contribution from other
Guarantors and any other rights such Guarantors
may have, contractual or otherwise, shall be taken
into account.
Capitalized terms used herein have the same
meanings given in the Indenture unless otherwise
indicated.
[GUARANTORS]
By______________________
Name:
Title:
B-1
EXHIBIT C
TRICO MARINE SERVICES, INC.
and
the Guarantors named herein
________________________________________
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
________________________________________
___________________
FORM OF SUPPLEMENTAL INDENTURE
AND AMENDMENT-SUBSIDIARY GUARANTEE
DATED AS OF ________ ___, ____
___________________
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
___________________
C-1
This SUPPLEMENTAL INDENTURE, dated as of
__________ ___, ____, is among Trico Marine
Services, Inc., a Delaware corporation (the
"Company"), each of the parties identified under
the caption "Guarantors" on the signature page
hereto (the "Guarantors") and Chase Bank of Texas,
National Association, as Trustee.
RECITALS
WHEREAS, the Company, the Guarantors and the
Trustee entered into an Indenture, dated as of
September 22, 1998 (the "Indenture"), pursuant to
which the Company issued $280,000,000 in principal
amount of 8 1/2 % Senior Notes due 2005, Series G
(the "Notes"); and
WHEREAS, Section 9.01(f) of the Indenture
provides that the Company and the Trustee may
amend or supplement the Indenture in order to
execute a guarantee (a "Subsidiary Guarantee") to
comply with Section 10.02 or 10.04 thereof without
the consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by
the Indenture, by law and by the Certificate of
Incorporation and the Bylaws of the Company, of
the Guarantors and of the Trustee necessary to
make this Supplemental Indenture a valid
instrument legally binding on the Company, the
Guarantors and the Trustee, in accordance with its
terms, have been duly done and performed;
NOW, THEREFORE, to comply with the provisions
of the Indenture and in consideration of the above
premises, the Company, the Guarantors and the
Trustee covenant and agree for the equal and
proportionate benefit of the respective Holders of
the Notes as follows:
ARTICLE 1
SECTION 1.01. This Supplemental Indenture is
supplemental to the Indenture and does and shall
be deemed to form a part of, and shall be
construed in connection with and as part of, the
Indenture for any and all purposes.
SECTION 1.02. This Supplemental Indenture
shall become effective immediately upon its
execution and delivery by each of the Company, the
Guarantors and the Trustee.
ARTICLE 2
From this date, in accordance with Section
10.02 or 10.04 and by executing this Supplemental
Indenture and the accompanying Subsidiary
Guarantee (a copy of which is attached hereto),
the Guarantors whose signatures appear below are
subject to the provisions of the Indenture to the
extent provided for in Article 10 thereunder.
ARTICLE 3
SECTION 3.01. Except as specifically
modified herein, the Indenture and the Notes are
in all respects ratified and confirmed (mutatis
mutandis) and shall remain in full force and
effect in accordance with their terms with all
capitalized terms used herein without definition
having the same respective meanings ascribed to
them as in the Indenture.
SECTION 3.02. Except as otherwise expressly
provided herein, no duties, responsibilities or
liabilities are assumed, or shall be construed to
be assumed, by the Trustee by reason of this
Supplemental Indenture. This Supplemental
Indenture is executed and accepted by the Trustee
subject to all the terms and conditions set forth
in the Indenture with the same force and effect as
if those terms and conditions were repeated at
length herein and made applicable to the Trustee
with respect hereto.
SECTION 3.03. THE INTERNAL LAW OF THE STATE
OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE
SUBSIDIARY GUARANTEES.
SECTION 3.04. The parties may sign any
number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of
such executed copies together shall represent the
same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
C-2
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly
executed, all as of the date first written above.
TRICO MARINE SERVICES, INC.
By__________________________________
Name:
Title:
GUARANTORS
[__________]
By__________________________________
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By__________________________________
Name:
Title:
C-3
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly
executed, all as of the date first written above.
TRICO MARINE SERVICES, INC.
By________________________
Name:
Title:
GUARANTORS
[_________]
By________________________
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By________________________
Name:
Title:
(Face of Note)
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
No. $_______________
CUSIP NO.
TRICO MARINE SERVICES, INC.
promises to pay to __________ or registered assigns, the principal sum of
___________ Dollars on August 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
(SEAL)
TRICO MARINE SERVICES, INC.
By__________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Trustee
By________________________________
Authorized Signatory
Dated: ______________________
(Back of Note)
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such
successor Depository. Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Water Street,
New York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as may be requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL in as much as the registered owner hereof, Cede &
Co., has an interest herein.][1]
**FOOTNOTES**
[1.] This paragraph should be included only if the Note is issued in global
form.
1. INTEREST. Trico Marine Services, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Note at 8 1/2 % per annum from the date on which interest was last paid on
the Series A/B Note, Series D Note, Series F Note or Note for which this
Note was issued in exchange until maturity. The Company will pay interest
semi-annually in arrears on February 1 and August 1 of each year,
commencing February 1, 1999, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which
interest has been paid on the Series A/B Note, Series D Note, Series F Note
or Note for which this Note was issued in exchange; provided that if there
is no existing Default or Event of Default in the payment of interest, and
if this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time
on demand at a rate that is the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the January 15 or July 15 next preceding
the Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and interest, if any, at the
office or agency of the Company maintained for such purpose within the City
and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, and provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of and interest and premium, if any, on all Global Notes and all
other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Chase Bank of Texas,
National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may
act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of September 22, 1998 ("Indenture") among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S.
Code <section><section> 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general unsecured obligations of
the Company limited in aggregate principal amount to $280,000,000 issued
on the Issue Date and additional principal amounts issuable thereafter
subject to the terms of the Indenture.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to August 1,
2001. Thereafter, the Company shall have the option to redeem the Notes,
in whole or in part, upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on
August 1 of the years indicated below:
YEAR PERCENTAGE
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5 the Company may at any time prior to August 1, 2001, at its
option, redeem the Notes, in whole or in part, at the Make-Whole Price plus
accrued and unpaid interest, if any, thereon to the redemption date. In
addition, at any time prior to July 17, 2000, the Company may redeem up to
35% of the aggregate principal amount of Notes originally issued at a
redemption price of 108.5% of the principal amount thereof, plus accrued
and unpaid interest, if any, thereon to the redemption date, with the net
cash proceeds of one or more Qualified Equity Offerings; provided that (a)
at least $182.0 million in aggregate principal amount of Notes remain
outstanding immediately after the occurrence of each such redemption and
(b) each such redemption shall occur within 60 days of the date of the
closing of each such Qualified Equity Offering. For purposes of this
paragraph only, any reference herein to "Notes" shall be deemed to include
the Notes and the Series A/B Notes, the Series D Notes and the Series F
Notes.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, thereon to the date of purchase
(the "Change of Control Payment"). Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the
transaction that constitutes the Change of Control and setting forth the
procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales, within 30 days of each date on which the aggregate amount of Excess
Proceeds exceeds $5.0 million, the Company shall commence an offer to all
Holders of Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture; provided, however, that, if the
Company is required to apply such Excess Proceeds to repurchase, or to
offer to repurchase, any Pari Passu Indebtedness, the Company shall only be
required to offer to repurchase the maximum principal amount of Notes that
may be purchased out of the amount of such Excess Proceeds multiplied by a
fraction, the numerator of which is the aggregate principal amount of Notes
outstanding and the denominator of which is the aggregate principal amount
of Notes outstanding plus the aggregate principal amount of Pari Passu
Indebtedness outstanding. To the extent that the aggregate amount of
Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased). For purposes of this paragraph only, any references to the
"Notes" shall be deemed to include the Notes and the Series A/B Notes, the
Series D Notes and the Series F Notes. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes .
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes
to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture or the
Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in
place of certificated Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to
the Holders of the Notes or that does not adversely affect the legal rights
under the Indenture of any such Holder, or to comply with the requirements
of the Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on the Notes; (ii) default
in payment when due of the principal of or premium, if any, on the Notes;
(iii) failure by the Company to comply with Section 4.10, 4.15 or 5.01 of
the Indenture; (iv) failure by the Company for 60 days after notice to
comply with any of its other agreements in the Indenture or the Notes; (v)
default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Restricted Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or guarantee now exists or is
created after July 21, 1997, which default (a) is caused by a failure to
pay principal of or premium or interest on such Indebtedness prior to the
expiration of any grace period provided in such Indebtedness (a "Payment
Default") or (b) results in the acceleration of such Indebtedness prior to
its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5.0 million or more; and
provided, further, that if such default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid within a period of
10 days from the continuation of such default beyond the applicable grace
period or the occurrence of such acceleration, as the case may be, an Event
of Default and any consequential acceleration of the Notes shall be
automatically rescinded, so long as said rescission does not conflict with
such judgment or decree; (vi) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments aggregating in excess of
$5.0 million, which judgments are not paid, discharged or stayed for a
period of 60 days; (vii) failure by any Guarantor to perform any covenant
set forth in its Subsidiary Guarantee, or the repudiation by any Guarantor
of its obligations under its Subsidiary Guarantee or the unenforceability
of any Subsidiary Guarantee against a Guarantor for any reason; and (viii)
certain events of bankruptcy or insolvency with respect to the Company or
any Guarantor. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Notes will
become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except
a continuing Default or Event of Default in the payment of the principal of
or premium or interest, if any, on the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default
or Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. DEFEASANCE. The Notes are subject to defeasance upon the terms
and conditions specified in the Indenture.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such,
shall not have any liability for any obligations of the Company or any
Guarantor under the Notes, the Subsidiary Guarantees or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
the issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. DEFINITIONS. Capitalized terms used herein, but not otherwise
defined herein, are used with the meanings ascribed to them in the
Indenture.
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Trico Marine Services, Inc.
2401 Fountain View
Suite 920
Houston, Texas 77057
Attention: Corporate Secretary
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint____________________________________________________
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No.:__________________
Signature Guarantee:
SCHEDULE OF EXCHANGES OF NOTES[2]
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR OTHER NOTES HAVE
BEEN MADE:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Amount of this
Amount of decrease in Principal Global Note following Signature authorized
in Principal Amount Amount of this such decrease (or officer of Trustee or
Date of Exchange of this Global Note Global Note increase) Note Custodian
- ----------------- --------------------- -------------------- -------------------- ---------------------
</TABLE>
**FOOTNOTES**
[2.] This should be included only if the Note is issued in global form.
SUBSIDIARY GUARANTEE
Subject to Section 10.06 of the Indenture, dated September 22, 1998
(the "Indenture") by and among Trico Marine Services, Inc., a Delaware
corporation (the "Company"), the guarantors listed on the signature page
hereto (each, a "Guarantor" and, collectively, the "Guarantors") and Chase
Bank of Texas, National Association, as trustee, each Guarantor hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
the Indenture, the Notes and the Obligations of the Company under the Notes
or under the Indenture, that: (a) the principal of, premium and interest,
if any, on the Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration, redemption
or otherwise, and interest on overdue principal, premium, if any, (to the
extent permitted by law) and interest on any interest, if any, on the Notes
and all other payment Obligations of the Company to the Holders or the
Trustee under the Indenture or under the Notes will be promptly paid in
full and performed, all in accordance with the terms thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of
such other payment Obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors will be jointly and severally obligated to pay the same
immediately. An Event of Default under the Indenture or the Notes shall
constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Holders to accelerate the Obligations of the Guarantors
hereunder in the same manner and to the same extent as the Obligations of
the Company. The Guarantors hereby agree that their Obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that
this Subsidiary Guarantee will not be discharged except by complete
performance of the Obligations contained in the Notes and the Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, or any Note Custodian, Trustee,
liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by the Company or any Guarantor
to the Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor agrees that it shall not be entitled to, and hereby waives, any
right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby. Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the Holders and the Trustee,
on the other hand, (a) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the
Obligations guaranteed thereby, and (b) in the event of any declaration of
acceleration of such Obligations as provided in Article 6 of the Indenture,
such Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of this Subsidiary
Guarantee. The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantees.
The obligations of the Guarantor to the Holders and to the Trustee
pursuant to this Subsidiary Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Articles 10 of the Indenture are incorporated herein by reference. This
Subsidiary Guarantee is subject to release as and to the extent provided in
Sections 10.04 and 10.05 of the Indenture.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full
and final payment of all of the Company's Obligations under the Notes and
the Indenture and shall inure to the benefit of the successors and assigns
of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions hereof. This is a Subsidiary Guarantee of payment and not a
guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee or an
authenticating agent under the Indenture by the manual signature of one of
its authorized officers.
For purposes hereof, each Guarantor's liability shall be limited to
the lesser of (i) the aggregate amount of the Obligations of the Company
under the Notes and the Indenture and (ii) the amount, if any, which would
not have (A) rendered such Guarantor "insolvent" (as such term is defined
in the Bankruptcy Law and in the Debtor and Creditor Law of the State of
New York) or (B) left such Guarantor with unreasonably small capital at the
time its Subsidiary Guarantee of the Notes was entered into and (c) in the
case of Saevik Supply ASA and Saevik Shipping AS, the maximum amount
permitted under Norwegian law; provided that, it will be a presumption in
any lawsuit or other proceeding in which a Guarantor is a party that the
amount guaranteed pursuant to the Subsidiary Guarantee is the amount set
forth in clause (i) above unless any creditor, or representative of
creditors of such Guarantor, or debtor in possession or trustee in
bankruptcy of such Guarantor, otherwise proves in such a lawsuit that the
aggregate liability of the Guarantor is limited to the amount set forth in
clauses (ii) or (iii) above. The Indenture provides that, in making any
determination as to the solvency or sufficiency of capital of a Guarantor
in accordance with the previous sentence, the right of such Guarantors to
contribution from other Guarantors and any other rights such Guarantors may
have, contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
TRICO MARINE ASSETS, INC.
By: _____________________________________
Victor M. Perez
Vice President and Chief Financial Officer
TRICO MARINE OPERATORS, INC.
By: _____________________________________
Victor M. Perez
Vice President and Chief Financial Officer
TRICO MARINE INTERNATIONAL HOLDINGS B.V.
By: _____________________________________
Ronald O. Palmer
Director
SAEVIK SUPPLY ASA
By: _____________________________________
Widar Salbuvik
Chairman of the Board
SAEVIK SHIPPING AS
By _____________________________________
Jon Arild Goksoyr
General Manager
