As filed with the Securities and Exchange Commission on September 23, 1998.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRICO MARINE SERVICES, INC.
(AND ITS SUBSIDIARIES IDENTIFIED IN FOOTNOTE (1) BELOW)
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 4424 72-1252405
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or organization) Industrial Classification Code) Identification No.)
</TABLE>
250 North American Court
Houma, Louisiana 70363
(504) 851-3833
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Victor M. Perez
Vice President and Chief Financial Officer
Trico Marine Services, Inc.
2401 Fountainview Drive, Suite 920
Houston, Texas 77057
(713) 780-9926
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
William B. Masters, Esq.
Jones, Walker, Waechter, Poitevent,
Carre`re & Dene`gre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170
Fax: 504-582-8012
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. <square>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE{(2)} FEE
<S> <C> <C> <C> <C>
8-1/2% Senior Notes Due 2005, Series G $280,000,000 100% $280,000,000 $82,600
Senior Guarantees{ (3)} -- -- -- --
</TABLE>
(1) Trico Marine Assets, Inc., a Delaware corporation (I.R.S. Employer
Identification Number 72-1252404), Trico Marine Operators, Inc, a Louisiana
corporation (I.R.S. Employer Identification Number 72-1096124), Trico
Marine International Holdings B.V., a corporation organized under the laws
of The Netherlands, Saevik Supply ASA, a corporation organized under the
laws of the Kingdom of Norway, and Saevik Shipping AS, a corporation
organized under the laws of the Kingdom of Norway, each a wholly owned
subsidiary of the Company, will each be a guarantor of the 8-1/2% Senior
Notes due 2005, Series G (collectively, the "Guarantors").
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The 8-1/2% Senior Notes due 2005, Series G are to be guaranteed by the
Guarantors on a senior basis. No separate consideration will be paid in
respect of the guarantees.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
The information in this Prospectus is not complete and may be changed. The
Company may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This Prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
PROSPECTUS Subject to completion, Dated September 23, 1998
TRICO MARINE SERVICES, INC.
OFFER TO EXCHANGE ALL OUTSTANDING
8-1/2% SENIOR NOTES DUE 2005, SERIES A, B, D AND F
($280,000,000 PRINCIPAL AMOUNT OUTSTANDING)
8-1/2% SENIOR NOTES DUE 2005, SERIES G
($280,000,000 PRINCIPAL AMOUNT)
Trico Marine Services, Inc., a Delaware corporation (the "Company" or
"Trico"), and the Guarantors (as defined herein) hereby offer, upon the terms
and subject to the conditions set forth in this Prospectus and the accompanying
letter of transmittal (the "Letter of Transmittal," and together with this
Prospectus, the "Exchange Offer"), to exchange $1,000 principal amount of 8-
1/2% Senior Notes Due 2005, Series G of the Company (the "New Notes") for each
$1,000 principal amount of 8-1/2% Senior Notes Due 2005, Series A, B, D and F
of the Company (collectively, the "Old Notes"), of which an aggregate principal
amount of $280,000,000 is outstanding. The form and terms of the New Notes are
identical in all material respects to the form and terms of the Old Notes
except, in the case of the unregistered 8-1/2% Senior Notes Due 2005, Series A
(the "Series A Notes"), that the New Notes are being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and, therefore, will
not bear any legends restricting their transfer. The New Notes will evidence
the same debt as the Old Notes and will be issued pursuant to, and entitled to
the benefits of, the Indenture (as defined herein). The New Notes and the Old
Notes are collectively referred to herein as the "Notes." See "The Exchange
Offer" and "Description of the New Notes."
Interest on the New Notes will be payable semi-annually in arrears on
February 1 and August 1 of each year, commencing February 1, 1999. Interest on
the New Notes will accrue from the last date on which interest was paid on the
Old Notes. The New Notes will mature on August 1, 2005. The New Notes will be
redeemable at the option of the Company, in whole or in part, at any time on or
after August 1, 2001, at the redemption prices set forth herein, plus accrued
and unpaid interest thereon, to the redemption date. Notwithstanding the
foregoing, on or prior to August 1, 2001, the Company may redeem the New Notes
at its option, in whole or in part, at the Make-Whole Price (as defined
herein), plus accrued and unpaid interest thereon, to the redemption date. In
addition, on or prior to July 17, 2000, the Company may redeem up to 35% of the
aggregate principal amount of New Notes at a redemption price of 108.5% of the
principal amount thereof, plus accrued and unpaid interest thereon, to the
redemption date, with the net cash proceeds of one or more Qualified Equity
Offerings (as defined herein), provided that at least $182.0 million aggregate
principal amount of New Notes (together with any Old Notes not exchanged
pursuant to the Exchange Offer) remains outstanding following each such
redemption. Upon the occurrence of a Change of Control (as defined herein),
the Company will be required to make an offer to repurchase all or any part of
each holder's New Notes at a price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, to the date of repurchase.
See "Description of the New Notes."
The New Notes will be general unsecured obligations of the Company,
ranking pari passu in right of payment with all other future senior
indebtedness of the Company, senior in right of payment to any subordinated
indebtedness incurred by the Company in the future and on a parity with any Old
Notes that remain outstanding after the Exchange Offer. The New Notes will be
effectively subordinated, however, to all (existing or future) secured
obligations of the Company and its subsidiaries, to the extent of the assets
securing such obligations. As of June 30, 1998, the Company had $405.5 million
in outstanding Indebtedness, $125.5 million of which was secured. The
Indenture will permit the Company and its subsidiaries to incur additional
indebtedness, including additional secured indebtedness, under certain
conditions. See "Risk Factors -- Ranking of the Notes; Effective
Subordination" and "Description of the New Notes -- Certain Covenants --
Incurrence of Indebtedness and Issuance of Preferred Stock." The New Notes
will be jointly and severally guaranteed by the Company's present principal
operating subsidiaries and future Significant Subsidiaries (as defined herein).
SEE "RISK FACTORS" BEGINNING ON PAGE 7 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH THE EXCHANGE OFFER AND
AN INVESTMENT IN THE NEW NOTES OFFERED HEREBY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company and the Guarantors will accept for exchange any and all Old
Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City
time, on _____, 1998, unless extended (as so extended, the "Expiration Date").
Tenders of Old Notes may be withdrawn at any time prior to 5:00 p.m. New York
City time on the Expiration Date. The Exchange Offer is not conditioned upon
any minimum principal amount of Old Notes being tendered for exchange; however,
the Exchange Offer is subject to certain customary conditions. Old Notes may
be tendered only in denominations of $1,000 principal amount and integral
multiples thereof. See "The Exchange Offer."
The Series A Notes are eligible for trading in The PORTAL Market. The
Company does not intend to list the New Notes on any securities exchange.
This Prospectus is dated __________________, 1998.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder, and in accordance therewith files periodic reports,
proxy and other information statements with the Commission. All reports, proxy
and information statements, and other information filed by the Company with the
Commission may be inspected at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
regional offices of the Commission located at 7 World Trade Center, 13th Floor,
New York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission also maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements
regarding registrants, such as the Company, that file electronically with the
Commission. The Company's Common Stock is traded on the Nasdaq National Market
and reports, proxy statements and other information concerning the Company can
also be inspected at the offices of the National Association of Securities
Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, (ii) Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1998 and June 30, 1998, (iii) Current Reports on Form 8-K dated
September 4, 1998, March 24, 1998, February 18, 1998, December 24, 1997 and
December 2, 1997, which have been filed by the Company with the Commission
pursuant to the Exchange Act, and (iv) pages F-29 through F-53 of the Company's
Registration Statement on Form S-3 (File No. 333-39597), filed with the
Commission pursuant to the Securities Act on November 5, 1997, as amended, are
by this reference incorporated in and made a part of this Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the Exchange Offer shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
This Prospectus incorporates important business and financial information
about the Company that is not included in or delivered with the Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus has been delivered, upon the written or oral request of such person,
a copy of any and all of the documents which have been or may be incorporated
by reference in this Prospectus, except that exhibits to such documents will
not be provided unless they are specifically incorporated by reference into
such documents. Requests for copies of any such document should be directed to
Trico Marine Services, Inc., Attention: Corporate Secretary, 2401 Fountainview,
Suite 920, Houston, Texas 77057 (telephone: (713) 780-9926). TO OBTAIN TIMELY
DELIVERY OF SUCH INFORMATION, REQUESTS MUST BE RECEIVED BY THE COMPANY NO LATER
THAN FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE.
ENFORCEMENT OF CIVIL LIABILITIES
Trico Marine International Holdings B.V. ("International"), a guarantor
of the Notes, is a private company with limited liability incorporated in The
Kingdom of the Netherlands. Substantially all of its assets are located
outside the United States. International has been advised by its legal counsel
in the Netherlands, Wouters Advocaten, that there is no treaty between the
United States and the Netherlands for the mutual recognition and enforcement of
judgments (other than arbitration awards) in civil and commercial matters.
Therefore, final judgments for the payment of money rendered by any federal or
state court in the United States based on civil liability, whether or not
predicated solely upon the federal securities laws, would not be directly
enforceable in the Netherlands. In order to enforce in the Netherlands any
United States judgment obtained against International, proceedings must be
initiated before a court of competent jurisdiction in the Netherlands. A
Netherlands court will, under current practice, normally issue a judgment based
upon the judgment rendered by the United States court if it finds that (i) the
United States court had jurisdiction over the original proceedings, (ii) the
judgment was obtained in compliance with principles of due process, (iii) the
judgment is final and conclusive such that all appeals have been exhausted and
(iv) the judgment does not contravene the public policy or public order of the
Netherlands. Based on the foregoing, there can be no assurance that investors
will be able to enforce against International, certain members of the Board of
Directors of International or certain experts named herein who are residents of
the Netherlands or countries other than the United States any judgment in civil
and commercial matters, including judgments under the federal securities laws.
International has been advised by such counsel that, under certain
circumstances, a Netherlands court might impose civil liability on
International or on members of the Board of Directors of International in an
original action predicated solely upon the federal securities laws of the
United States brought in a court of competent jurisdiction in the Netherlands
against International or such members.
Saevik Supply ASA and Saevik Shipping AS (collectively, the "Saevik
Companies"), both of which are guarantors of the Notes, are joint-stock
companies organized under the laws of the Kingdom of Norway. A majority of
each of the Saevik Companies' directors and executive officers and certain of
the experts named herein reside in Norway or other countries other than the
United States. All or a substantial portion of the assets of such persons and
of the Saevik Companies are located outside the United States. As a result, it
may not be possible for investors to effect service of process within the
United States upon such persons or the Saevik Companies or to enforce, in U.S.
courts or outside the United States, judgments obtained against such persons in
jurisdictions outside the United States. In addition, it may be difficult for
investors to enforce, in original actions brought in courts in jurisdictions
located outside the United States, liabilities predicated upon the civil
liability provisions of the U.S. securities laws. The Company has been advised
by its Norwegian counsel, Thomessen Krefting Greve Lund, that there is doubt as
to the enforceability in Norway, in original actions or in actions for the
enforcement of judgments of U.S. courts, of civil liability predicated upon the
U.S. securities laws or other laws of the United States or any state thereof.
Trico, the issuer of the Notes, is a Delaware corporation with its
principal executive offices in the United States. Accordingly, process may be
served and judgments enforced against Trico in the United States, including
judgments predicated upon the civil liabilities provisions of the federal
securities laws of the United States.
SUMMARY
The following is a summary of certain information contained elsewhere in
this Prospectus or incorporated by reference herein and does not purport to be
complete. Reference is made to, and this Summary is qualified in its entirety
by and should be read in conjunction with, the more detailed information
contained elsewhere herein or incorporated by reference in this Prospectus.
Unless otherwise defined herein, capitalized terms used in this Summary have
the respective meanings ascribed to them elsewhere in this Prospectus or in the
Indenture (as defined herein).
THE COMPANY
Trico is a leading provider of marine support vessels and related
services to the oil and gas industry in the U.S. Gulf of Mexico (the "Gulf"),
North Sea and offshore Brazil. The Company has pursued an aggressive strategy
of growth through selected acquisitions which, together with strong utilization
of and day rates earned by its existing vessels during the last few years, has
enabled the Company to significantly increase total revenues and achieve strong
operating results. The services provided by Trico's diversified fleet include
transportation of drilling materials, supplies and crews to offshore
exploration and production facilities and support for the construction,
installation, maintenance and removal of those facilities. Trico has focused
on providing high quality, responsive service while maintaining a low cost
structure. The Company believes the quality of its fleet and the strength of
its experienced management team have allowed the Company to develop and
maintain long-term customer relationships.
THE ORIGINAL OFFERINGS
On July 21, 1997, the Company issued $110 million aggregate principal
amount of unregistered Series A Notes in a private transaction not subject to
the registration requirements of the Securities Act. In September 1997,
$109,321,000 in principal amount of the Series A Notes were exchanged for a
like amount of the Company's registered 8-1/2% Senior Notes due 2005, Series B
(the "Series B Notes," and together with the remaining outstanding Series A
Notes, the "Series A/B Notes"), which are freely tradeable. Of the
unregistered Series A Notes, $679,000 aggregate principal amount remains
outstanding.
On November 14, 1997, the Company issued $100 million aggregate principal
amount of unregistered 8-1/2% Senior Notes due 2005, Series C (the "Series C
Notes") in a private transaction not subject to the registration requirements
of the Securities Act. In March 1998, all of the outstanding Series C Notes
were exchanged for a like amount of the Company's registered 8 1/2 % Senior
Notes due 2005, Series D (the "Series D Notes"), which are freely traded.
On December 24, 1997, the Company issued $70 million aggregate principal
amount of unregistered 8-1/2% Senior Notes due 2005, Series E (the "Series E
Notes") in a private transaction not subject to the registration requirements
of the Securities Act. In April 1998, all of the outstanding Series E Notes
were exchanged for a like principal amount of the Company's 8-1/2% Senior Notes
due 2005, Series F (the "Series F Notes"), which are freely tradeable.
THE EXCHANGE OFFER
The Exchange Offer relates to the exchange of up to $280.0 million
aggregate principal amount of New Notes for up to $280.0 million aggregate
principal amount of the Old Notes. The form and terms of the New Notes are
identical in all material respects to the form and terms of the Old Notes
except, in the case of the unregistered Series A Notes, that the New Notes are
being registered under the Securities Act and, therefore, will not bear any
legends restricting their transfer. The New Notes will evidence the same debt
as the Old Notes and will be issued pursuant to, and entitled to the benefits
of, the Indenture. The Old Notes and the New Notes are referred to
collectively herein as the "Notes." See "Description of the New Notes."
The Company is conducting this Exchange Offer and has included the Series
B, D and F Notes in the offer, although such Old Notes are freely tradeable, in
order to allow all of the Company's outstanding 8-1/2% Senior Notes, due 2005
to trade as a single issue. The Company believes this will increase the
liquidity of the Notes.
The Exchange Offer Pursuant to the Exchange Offer, $1,000 principal amount of
New Notes will be issued in exchange for each $1,000
principal amount of Old Notes that are validly tendered and
not withdrawn. As of the date hereof, Old Notes
representing $280.0 million aggregate principal amount are
outstanding. The terms of the New Notes and the Old Notes
are substantially identical.
Resales.......... The New Notes issued pursuant to the Exchange Offer in
exchange for the Series B, D and F Notes may be offered for
resale, resold and otherwise transferred by any holder
thereof. Based on interpretations by the staff of the
Commission set forth in no-action letters issued to third
parties unrelated to the Company and the Guarantors, the
Company and the Guarantors believe that the New Notes
issued pursuant to the Exchange Offer in exchange for
Series A Notes may also be offered for resale, resold and
otherwise transferred by any holder thereof (other than
broker-dealers, as set forth below, and any such holder or
such other person that is an "affiliate" of the Company
within the meaning of Rule 405 under the Securities Act),
without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that
(i) the New Notes are acquired in the ordinary course of
such holder's business, (ii) such holder is not engaging in
and does not intend to engage in a distribution of the New
Notes, and (iii) such holder does not have an arrangement
or understanding with any person to participate in the
distribution of the New Notes. Any holder who tenders
Series A Notes in the Exchange Offer with the intention to
participate, or for the purpose of participating, in a
distribution of the New Notes or who is an affiliate of the
Company may not rely upon such interpretations by the staff
of the Commission and, in the absence of an exemption
therefrom, must comply with the registration and prospectus
delivery requirements of the Securities Act in connection
with any secondary resale transaction. Failure to comply
with such requirements in such instance may result in such
holder incurring liabilities under the Securities Act for
which the holder is not indemnified by the Company. Each
broker-dealer that receives New Notes for its own account
in exchange for Series A Notes, where those Series A Notes
were acquired by the broker-dealer as a result of its
market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. The Letter of
Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of
the Securities Act.
The Exchange Offer is not being made to, nor will the
Company accept surrenders for exchange from, holders of Old
Notes in any jurisdiction in which this Exchange Offer or
the acceptance thereof would not be in compliance with the
securities or blue sky laws of such jurisdiction.
Expiration Date.. The Exchange Offer will expire at 5:00 p.m., New York City
time, on ____, 1998, unless extended, in which case, the
term "Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended. See "The Exchange
Offer -- Terms of the Exchange Offer -- Expiration Date;
Extension; Amendments."
Conditions to the
Exchange Offer... The Exchange Offer is subject to certain customary
conditions, certain of which may be waived by the Company.
See "The Exchange Offer -- Terms of the Exchange Offer --
Conditions to the Exchange Offer." The Exchange Offer is
not conditioned upon any minimum principal amount of Old
Notes being tendered.
Procedures for Tendering
Old Notes........ Each holder of Old Notes wishing to accept the Exchange
Offer must complete, sign and date the Letter of
Transmittal, or a facsimile thereof, in accordance with the
instructions contained herein and therein, and mail or
otherwise deliver the Letter of Transmittal, or a
facsimile, together with the Old Notes and any other
required documentation, to the Exchange Agent (as defined
herein) at the address set forth herein and in the Letter
of Transmittal. Persons holding Old Notes through the
Depository Trust Company ("DTC") and wishing to accept the
Exchange Offer must do so pursuant to DTC's Automated
Tender Offer Program, by which each tendering Participant
will agree to be bound by the Letter of Transmittal. In
the case of holders of Series A Notes, by executing or
agreeing to be bound by the Letter of Transmittal, each
such holder will represent to the Company that, among other
things, (i) the New Notes acquired pursuant to the Exchange
Offer are being acquired in the ordinary course of such
holder's business, (ii) such holder is not engaging and
does not intend to engage in a distribution of such New
Notes, (iii) such holder does not have an arrangement or
understanding with any person to participate in the
distribution of such New Notes, and (iv) such holder is not
an "affiliate," as defined under Rule 405 promulgated under
the Securities Act, of the Company.
Special Procedures for
Beneficial Owners Any beneficial owner whose Old Notes are registered in the
name of a broker, dealer, commercial bank, trust company or
other nominee and who wishes to tender such Old Notes in
the Exchange Offer should contact such registered holder
promptly and instruct such registered holder to tender on
such beneficial owner's behalf. If such beneficial owner
wishes to tender on its own behalf, such owner must, prior
to completing and executing the Letter of Transmittal and
delivering its Old Notes, either make appropriate
arrangements to register ownership of the Old Notes in such
owner's name or obtain a properly completed bond power from
the registered holder. The transfer of registered
ownership may take considerable time and may not be able to
be completed prior to the Expiration Date. See "The
Exchange Offer -- Terms of the Exchange Offer -- Procedures
for Tendering Old Notes."
Guaranteed Delivery
Procedures....... Holders of Old Notes who wish to tender their Old Notes and
whose Old Notes are not immediately available or who cannot
deliver their Old Notes, the Letter of Transmittal or any
other documents required by the Letter of Transmittal to
the Exchange Agent prior to the Expiration Date, must
tender their Old Notes according to the guaranteed delivery
procedures set forth in "The Exchange Offer -- Terms of the
Exchange Offer -- Guaranteed Delivery Procedures."
Withdrawal....... The tender of Old Notes pursuant to the Exchange Offer may
be withdrawn at any time prior to 5:00 p.m., New York City
time, on the Expiration Date. Any Old Notes not accepted
for exchange for any reason will be returned without
expense to the tendering holder thereof as promptly as
practicable after the expiration or termination of the
Exchange Offer. See "The Exchange Offer -- Terms of the
Exchange Offer -- Withdrawal Rights."
Acceptance of Old Notes
and Delivery of
New Notes........ Subject to certain conditions (as described more fully in
"The Exchange Offer -- Terms of the Exchange Offer --
Conditions to the Exchange Offer"), the Company will accept
for exchange any and all Old Notes which are properly
tendered in the Exchange Offer prior to 5:00 p.m., New York
City time, on the Expiration Date. The New Notes issued
pursuant to the Exchange Offer will be delivered promptly
following the Expiration Date. See "The Exchange Offer --
Terms of the Exchange Offer."
Interest on the New Notes
and the Old Notes Interest on each New Note will accrue from the last date on
which interest was paid on the Old Note for which the New
Note is exchanged.
Exchange Agent... Chase Bank of Texas, National Association is serving as
Exchange Agent in connection with the Exchange Offer. The
address, telephone number and facsimile number of the
Exchange Agent are set forth in "The Exchange Offer --
Exchange Agent."
Effect of Not Tendering
Series A Notes... Series A Notes that are not tendered or that are tendered
but not accepted will, following the completion of the
Exchange Offer, continue to be subject to the existing
restrictions upon transfer thereof. The Company has no
obligation to provide for the registration under the
Securities Act of Series A Notes not exchanged pursuant to
the Exchange Offer.
TERMS OF NEW NOTES
Securities Offered $280.0 million aggregate principal amount of 8-1/2% Senior
Notes due 2005, Series G.
Maturity......... August 1, 2005
Interest Payment
Dates............ Interest on the New Notes will be payable semi-annually
in arrears on February 1 and August 1 of each year,
commencing February 1, 1999.
Ranking.......... The New Notes will be general unsecured obligations of the
Company, ranking pari passu in right of payment with all
other present or future senior indebtedness of the Company,
senior in right of payment to all present or future
subordinated indebtedness of the Company and on a parity
with any Old Notes that remain outstanding after completion
of the Exchange Offer. The New Notes will be effectively
subordinated, however, to all secured obligations of the
Company and its subsidiaries, to the extent of the assets
securing such obligations. At June 30, 1998, the Company
had $405.5 million outstanding Indebtedness, $125.5 million
of which was secured. The Indenture permits the Company
and its subsidiaries to incur additional indebtedness,
including additional secured indebtedness, subject to
certain conditions.
Guarantees....... The New Notes will be jointly and severally guaranteed on a
senior unsecured basis by the Company's principal operating
subsidiaries and future Significant Subsidiaries. See
"Description of the New Notes -- Subsidiary Guarantees."
Optional
Redemption....... The New Notes will be redeemable at the option of the
Company, in whole or in part, at any time on or after
August 1, 2001, at redemption prices set forth herein, plus
accrued and unpaid interest thereon, to the redemption
date. Notwithstanding the foregoing, on or prior to
August 1, 2001, the Company may redeem the New Notes at its
option, in whole or in part, at the Make-Whole Price (as
defined herein), plus accrued and unpaid interest thereon,
to the redemption date. In addition, on or prior to
July 17, 2000, the Company may redeem up to 35% of the
aggregate principal amount of the New Notes originally
issued at a redemption price of 108.5% of the principal
amount thereof, plus accrued and unpaid interest thereon,
to the redemption date, with the net cash proceeds of one
or more Qualified Equity Offerings, provided that at least
$182.0 million aggregate principal amount of New Notes
(together with any Old Notes that remain outstanding after
completion of the Exchange Offer) remains outstanding
following each such redemption. See "Description of the
New Notes -- Optional Redemption."
Change of Control Upon the occurrence of a Change of Control, the Company
will be required to make an offer to repurchase all or any
part of each holder's New Notes at a price equal to 101% of
the principal amount thereof, plus accrued and unpaid
interest thereon, to the date of repurchase. See "Risk
Factors -- Potential Inability to Fund a Change of Control"
and "Description of the New Notes -- Repurchase at the
Option of Holders -- Change of Control."
Certain Covenants The indenture pursuant to which the New Notes will be
issued (the "Indenture") contains certain covenants that,
among other things, limit the ability of the Company and
its subsidiaries to incur additional Indebtedness (as
defined herein), pay dividends or make other distributions,
repurchase Equity Interests (as defined herein) or
subordinated indebtedness, create certain liens, enter into
certain transactions with affiliates, issue or sell capital
stock of subsidiaries, engage in sale-and-leaseback
transactions, sell assets or enter into certain mergers or
consolidations. See "Description of the New Notes --
Certain Covenants."
For further information regarding the Notes, see "Description of the New
Notes."
USE OF PROCEEDS
The Company will not receive any proceeds from the issuance of the New
Notes pursuant to this Prospectus.
RISK FACTORS
For a discussion of certain factors that should be considered in
connection with the Exchange Offer and an investment in the New Notes offered
hereby, see "Risk Factors."
RISK FACTORS
In addition to the other information set forth elsewhere in this
Prospectus or incorporated by reference herein, the following factors relating
to the Company and this Exchange Offer should be considered by prospective
investors when evaluating an investment in the New Notes offered hereby.
SUBSTANTIAL INDEBTEDNESS
At June 30, 1998, the Company had $405.5 million of Indebtedness, $125.5
million of which was secured and stockholders' equity of $279.2 million. The
Company has significant outstanding Indebtedness and is permitted under the
terms of the Notes to incur certain other indebtedness. The Company's level of
indebtedness has several important effects on its future operations, including
(i) the Company's ability to obtain additional financing in the future for
working capital, capital expenditures, acquisitions, general corporate purposes
or other purposes may be impaired, (ii) a reduction of funds available to the
Company for its operations or for capital expenditures as a result of the
dedication of a substantial portion of the Company's cash flow to the payment
of principal of and interest on the Company's indebtedness, including
indebtedness under the Notes, (iii) restrictions in the Indenture, the
indentures under which the Old Notes were issued (collectively, the "Old
Indentures") that limit the Company's ability to borrow additional funds or to
dispose of assets, which may affect the Company's flexibility in planning for,
and reacting to, changes in its business, including possible acquisition
activities, (iv) the possibility of an event of default under the financial and
operating covenants contained in the Company's debt instruments, including the
Indenture, which, if not cured or waived, could have a material adverse effect
on the Company and (v) an inability to adjust to rapidly changing market
conditions and consequent vulnerability in the event that a downturn in general
economic conditions or its business because of the Company's reduced financial
flexibility. Moreover, future acquisitions may require the Company to alter
its capitalization significantly. See "Description of the New Notes -- Certain
Covenants."
The Company's ability to meet its debt service obligations and to reduce
its total indebtedness will be dependent upon the Company's future performance,
which will be subject to levels of activity in offshore oil and gas
exploration, development and production, particularly in the Gulf and North
Sea, general economic conditions and to financial, business and other factors
affecting the operations of the Company, many of which are beyond its control.
There can be no assurance that the Company's future performance will not be
adversely affected by such economic conditions and financial, business and
other factors. See "Capitalization."
If the Company is unable to generate sufficient cash flow from operations
in the future to service its debt, it may be required to refinance all or a
portion of its existing debt, including the Notes, or to obtain additional
financing. There can be no assurance that any such refinancing would be
possible or that any additional financing could be obtained. The inability to
obtain additional financing could have a material adverse effect on the
Company. For example, a default by the Company under the terms of the
Indenture or the Old Indentures could result in a default under the terms
governing the Company's secured indebtedness.
RESTRICTIONS IMPOSED BY TERMS OF THE COMPANY'S INDEBTEDNESS
The Indenture and the Old Indentures restrict, among other things, the
ability of the Company and its subsidiaries to incur additional indebtedness,
pay dividends or make certain other restricted payments, incur liens to secure
pari passu or subordinated indebtedness, apply net proceeds from certain asset
sales, merge or consolidate with any other person, sell, assign, transfer,
lease, convey or otherwise dispose of substantially all of the assets of the
Company, or enter into certain transactions with affiliates. In addition, the
Company's revolving credit facility (the "Bank Credit Facility"), and the
revolving credit facility maintained by the Company's subsidiary, Saevik Supply
ASA (the "Saevik Credit Facility") contain, and future credit facilities may
contain, other and more restrictive covenants and prohibit the Company and
Saevik Supply ASA ("Saevik Supply"), respectively, from prepaying other
indebtedness (including the Notes) before indebtedness outstanding under the
Bank Credit Facility, the Saevik Credit Facility or such other credit facility.
As a result of these covenants, the ability of the Company to respond to
changes in business and economic conditions and to secure additional financing,
if needed, may be significantly restricted, and the Company may be prevented
from engaging in transactions that might otherwise be considered beneficial to
the Company. See "Description of the New Notes -- Certain Covenants." The
Bank Credit Facility and the Saevik Credit Facility also require, and future
credit facilities may require, the Company and Saevik Supply, as the case may
be, to maintain specified financial ratios and satisfy certain financial
condition tests. The Company's and Saevik Supply's ability to meet these
financial ratios and tests can be affected by events beyond their control, and
there can be no assurance that the Company or Saevik Supply will meet those
tests. The breach of any of these covenants could result in a default under
the Bank Credit Facility, the Saevik Credit Facility or such other credit
facility. Upon the occurrence of an event of default under the Bank Credit
Facility, the Saevik Credit Facility or such other credit facility, the lenders
thereunder could elect to declare all amounts outstanding under such credit
facilities, including accrued interest or other obligations to be immediately
due and payable. If the Company were unable to repay those amounts, such
lenders could proceed against the collateral granted to them to secure that
indebtedness. If amounts outstanding under such credit facilities were to be
accelerated, there can be no assurance that the assets of the Company would be
sufficient to repay in full that indebtedness and other indebtedness of the
Company, including the Notes.
RANKING OF THE NOTES; EFFECTIVE SUBORDINATION
The Old Notes are, and the New Notes will be, senior unsecured
obligations of the Company ranking pari passu with all existing or future
senior indebtedness of the Company, including any Old Notes that remain
outstanding after completion of the Exchange Offer. Holders of secured
indebtedness of the Company and its subsidiaries, including secured
indebtedness under the Bank Credit Facility and the Saevik Credit Facility,
however, will have claims with respect to the assets constituting collateral
for such indebtedness that are superior to the claims of the holders of the New
Notes. In the event of a liquidation or insolvency of the Company or if any of
its secured indebtedness is accelerated, the secured assets of the Company will
be available to pay obligations on the New Notes only after the Bank Credit
Facility, the Saevik Credit Facility and any other secured indebtedness has
been paid in full. Accordingly, the Old Notes are, and the New Notes will be,
effectively subordinated to claims of secured creditors of the Company and its
Subsidiaries to the extent of such pledged collateral. At June 30, 1998, the
Company and its Subsidiaries had $125.5 million of secured indebtedness that
effectively would rank senior to the Notes and the Subsidiary Guarantees (as
defined herein) in right of payment. The Indenture limits the amount of liens
securing the Bank Credit Facility to $65 million plus 15% of Consolidated Net
Tangible Assets. See "Description of the New Notes -- Certain Covenants --
Incurrence of Indebtedness."
POTENTIAL INABILITY TO FUND A CHANGE OF CONTROL OFFER
Upon a Change of Control (as defined in the Indenture), the Company will
be required to offer to repurchase all outstanding Notes at 101% of the
principal amount thereof, plus accrued and unpaid interest to the date of
repurchase. Certain events involving a Change of Control may result in an
event of default under the Bank Credit Facility or the Saevik Credit Facility
and may result in an event of default under certain other indebtedness of the
Company that may be incurred in the future. An event of default under the Bank
Credit Facility, the Saevik Credit Facility or other indebtedness could result
in acceleration of such indebtedness, in which case the Notes would be
effectively subordinated to the borrowings under the Bank Credit Facility, the
Saevik Credit Facility or other secured indebtedness to the extent of any liens
securing that debt. There can be no assurance that sufficient funds will be
available to the Company at the time of any Change of Control to make any
required repurchases of Notes tendered, pay its obligations under the Bank
Credit Facility, the Saevik Credit Facility or other indebtedness upon the
occurrence of a Change of Control. These provisions may be deemed to have
anti-takeover effects and may delay, defer or prevent a merger, tender offer or
other takeover attempt. Notwithstanding these provisions, the Company could
enter into certain transactions, including certain recapitalizations, that
would not constitute a Change of Control but would increase the amount of debt
outstanding at such time. See "Description of the New Notes -- Repurchase at
Options of Holders."
FRAUDULENT TRANSFER CONSIDERATIONS
Under applicable provisions of the United States Bankruptcy Code or
comparable provisions of state fraudulent transfer or conveyance law, if the
Guarantors, at the time they incurred the Subsidiary Guarantees (as defined
herein), (a) incurred such indebtedness with the intent to hinder, delay or
defraud creditors, or (b)(i) received less than reasonably equivalent value or
fair consideration and (ii)(A) was insolvent at the time of such incurrence,
(B) was rendered insolvent by reason of such incurrence (and the application of
the proceeds thereof), (C) was engaged or was about to engage in a business or
transaction for which the assets remaining with the Company constituted
unreasonably small capital to carry on its business, or (D) intended to incur,
or believed that it would incur, debts beyond its ability to pay such debts as
they mature, then, in each such case, a court of competent jurisdiction could
void, in whole or in part, the Subsidiary Guarantees or, in the alternative,
subordinate the Subsidiary Guarantees to existing and future indebtedness of
the Guarantors. Similarly, under applicable Norwegian law, a Norwegian company
is generally prohibited from guaranteeing the obligations of its shareholders
unless (i) the Company has free equity in excess of the amount guaranteed and
(ii) the shareholder has provided the Company with adequate security for the
guarantee obligations. Among other things, a legal challenge of the Subsidiary
Guarantees issued by any Guarantor on fraudulent conveyance or other grounds
may focus on the benefits, if any, realized by such Guarantor as a result of
the issuance by the Company of the Notes. To the extent the Subsidiary
Guarantee was voided as a fraudulent conveyance or held unenforceable for any
other reason, the holders of the Notes would cease to have any claim against
such Guarantor and would be creditors solely of the Company and any Guarantor
whose Subsidiary Guarantees were not voided or held unenforceable. In such
event, the claims of the holders of the Notes against the issuer of an invalid
Subsidiary Guarantee would be subject to the prior payment of all liabilities
of such Guarantor. There can be no assurance that, after providing for all
prior claims, there would be sufficient assets to satisfy the claims of the
holders of the Notes relating to any avoided portions of any of the Subsidiary
Guarantees.
The measure of insolvency for purposes of the foregoing would likely vary
depending upon the law applied in such case. U.S. Bankruptcy Law provides
generally, however, that a Guarantor would be considered insolvent if the sum
of its debts, including contingent liabilities, was greater than all of its
assets at a fair valuation, or if the present fair saleable value of its assets
was less than the amount that would be required to pay the probable liabilities
on its existing debts, including contingent liabilities, as such debts become
absolute and matured. A Norwegian company's free equity is the amount by which
such company's total equity exceeds its share capital and any reserve funds or
other restricted equity. The Company believes that, for purposes of the United
States Bankruptcy Code, Norwegian Law and state fraudulent transfer or
conveyance laws, the Subsidiary Guarantees were issued, with respect to the Old
Notes, and will be issued, with respect to the New Notes, without the intent to
hinder, delay or defraud creditors and for proper purposes and in good faith,
and that the Guarantors received reasonably equivalent value or fair
consideration therefor, and that after the issuance of the Subsidiary
Guarantees, the Guarantors will be solvent, have sufficient capital for
carrying on their businesses, will be able to pay their debts as they mature
and, in the case of the Saevik Companies, the Subsidiary Guarantees are limited
to their respective free equity and were not issued in violation of Norwegian
law. However, there can be no assurance that a court passing on such issues
would agree with the determination of the Company.
DEPENDENCE ON OIL AND GAS INDUSTRY; MARKET VOLATILITY
The Company's operations depend on activity in offshore oil and gas
exploration, development and production. The level of exploration and
development activity has traditionally been volatile as a result of
fluctuations in oil or natural gas prices and their uncertainty in the future.
A significant or prolonged reduction in oil or natural gas prices would likely
depress offshore drilling and development activity and reduce the demand for
the Company's marine support services. A substantial reduction of activity in
the Gulf and other areas where the Company operates could have a material
adverse effect on the Company's financial condition and results of operations.
Recently, oil and natural gas prices have declined significantly, which has had
an adverse impact on day rates and utilization for the Company's Gulf fleet.
Further declines in such prices could have an additional impact on the
Company's results of operations and financial condition.
Charter rates for marine support vessels also depend on the supply of
vessels. Excess vessel capacity in the industry can result primarily from the
construction of new vessels and the mobilization of vessels between market
areas. During the last two years there has been a significant increase in
construction of vessels of the type operated by the Company, for use both in
the Gulf and the North Sea. The addition of new capacity to the worldwide
offshore marine fleet could increase competition in those markets where the
Company operates, which, in turn, could have a material adverse effect on the
Company's financial condition and results of operations.
MANAGEMENT OF GROWTH
The Company has rapidly expanded its operations through acquisitions in
the past two years. The acquisition of Saevik Supply significantly increased
the geographic scope of the Company's operations and its overall size. The
Company's growth has placed, and is expected to continue to place, substantial
demands on the Company's managerial, operational, financial and other
resources. Management of this growth will require the Company to continue to
invest in its operations, including its financial and management information
systems, and to increase its efforts to retain, motivate and effectively manage
its employees, all of which may increase the Company's operating expenses. Any
failure by the Company to achieve and manage this growth as planned could have
a material adverse effect on the Company's business, financial condition and
results of operations.
COMPETITION
The Company's business is highly competitive. Competition in the marine
support services industry primarily involves factors such as (i) price, service
and reputation of vessel operators and crews, (ii) the availability of vessels
of the type and size needed by the customer and (iii) the quality of equipment.
Certain of the Company's competitors have significantly greater financial
resources than the Company and more experience operating in international
areas.
OPERATING RISKS AND INSURANCE
Marine support vessels are subject to operating risks such as
catastrophic marine disaster, adverse weather conditions, mechanical failure,
collisions, oil and hazardous substance spills and navigation errors. The
occurrence of any of these events may result in damage to or loss of Company
vessels and such vessels' tow or cargo or other property and injury to
passengers and personnel. Such occurrences may also result in a significant
increase in operating costs or liability to third parties. The Company
maintains insurance coverage against certain of these risks, which management
considers to be customary in the industry. There can be no assurance, however,
that the Company's existing insurance coverage can be renewed at commercially
reasonable rates or that such coverage will be adequate to cover future claims
that may arise.
GOVERNMENT REGULATION
The Company's operations are materially affected by federal, state and
local regulations, as well as certain international conventions, private
industry organizations and laws and regulations in jurisdictions where the
Company's vessels operate and are registered. These regulations govern worker
health and safety and the manning, construction and operation of vessels.
These organizations establish safety criteria and are authorized to investigate
vessel accidents and recommend approved safety standards. The failure to
comply with the requirements of any of these laws or the rules or regulations
of these agencies and organizations could have a material adverse effect on the
Company.
The Company's operations also are subject to federal, state and local
laws and regulations and in jurisdictions where the Company's vessels operate
and are registered, which control the discharge of pollutants into the
environment and which otherwise relate to environmental protection. While the
Company's insurance policies provide coverage for accidental occurrence of
seepage and pollution or clean-up and containment of the foregoing, pollution
and similar environmental risks generally are not fully insurable. Substantial
costs may be incurred in complying with such laws and regulations, and
noncompliance can subject the Company to substantial liabilities. There can be
no assurance that such costs and liabilities will not be incurred, or that the
laws and regulations applicable to the Company and its operations will not
change. Any violation of such laws or regulations could result in significant
liability to the Company, and any amendment to such laws or regulations that
mandates more stringent compliance standards would likely cause an increase in
the Company's vessel expenses.
SEASONALITY
The Company's marine operations are seasonal and depend, in part, on
weather conditions. Historically, the Company has enjoyed its highest
utilization rates during the second and third quarters, as mild weather
provides favorable conditions for offshore exploration, development and
construction in the Gulf. Adverse weather conditions during the winter months
generally curtail offshore development operations and can particularly impact
lift boat utilization rates. Activity in the North Sea is also subject to
delays during periods of adverse weather, but is not affected by seasonality to
the extent activity in the Gulf is. Accordingly, the results of any one
quarter are not necessarily indicative of annual results or continuing trends.
AGE OF FLEET
As of June 30, 1998, the average age of the Company's Gulf fleet (based
on the date of construction) was approximately 17 years (approximately 11 years
for its North Sea fleet). Management believes that after a vessel has been in
service for approximately 30 years, repair, vessel certification and
maintenance costs may become no longer economically justifiable. There can be
no assurance that the Company will be able to maintain its fleet by extending
the economic life of existing vessels through major refurbishment or by
acquiring new or used vessels.
INTERNATIONAL OPERATIONS
The acquisition of Saevik Supply substantially increased the percentage
of the Company's operations conducted in currencies other than the United
States dollar. Changes in the value of foreign currencies relative to the
United States dollar could adversely affect the Company's results of operations
and financial position, and transaction gains and losses could contribute to
fluctuations in the Company's results of operations. There can be no assurance
that fluctuations in foreign currency rates will not have a material adverse
effect on the Company's results of operations.
The Company's international operations are subject to a number of risks
inherent with any business operating in foreign countries. These risks
include, among others, political instability, potential vessel seizure,
nationalization of assets, currency restrictions and exchange rate
fluctuations, import-export quotas and other forms of public and governmental
regulation, all of which are beyond the control of the Company. Although it is
impossible to predict the nature and the likelihood of any events of these
types, if such an event should occur, it could have a material adverse effect
on the Company's financial condition and results of operations.
DEPENDENCE ON KEY PERSONNEL
The Company depends on the continued services of Thomas E. Fairley, its
President and Chief Executive Officer, Ronald O. Palmer, its Chairman of the
Board, Victor M. Perez, its Chief Financial Officer, and other key management
personnel. The loss of any of these persons could adversely affect the
Company's operations.
ABSENCE OF A PUBLIC MARKET FOR THE NEW NOTES
The New Notes are a new issue of securities for which there currently is
no public market. The Company does not intend to list the New Notes on any
securities exchange. If a market develops for the New Notes, there can be no
assurance as to the liquidity of such market, the ability of holders to sell
their New Notes or the prices at which holders would be able to sell the New
Notes. If a market for the New Notes does develop, the New Notes may trade at
a discount to their principal amount, depending on prevailing interest rates,
the market for similar securities, the performance of the Company, the
performance of the oil and gas services industry and other factors.
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Series A Notes who do not exchange their Series A Notes for
New Notes pursuant to the Exchange Offer will continue to be subject to the
restrictions on transfer of Series A Notes set forth in the legend thereon as a
consequence of the issuance of the Series A Notes pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act. In general, the Series A Notes may not be offered or sold,
unless registered under the Securities Act, except pursuant to an exemption
from, or in a transaction not subject to, the Securities Act and applicable
state securities laws.
The Company is conducting this Exchange Offer in order to allow all of
its Outstanding 8-1/2% Series Notes due 2005 to trade as a single issue, which
management believes will increase the liquidity of the Notes. Failure of a
holder of Old Notes to exchange such Old Notes for New Notes would result in
decreased liquidity of the market for the particular series of Old Notes not
exchanged.
FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference "forward-looking
statements" within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act. All statements other than statements of historical
fact included in this Prospectus or incorporated by reference herein, including
without limitation the statements under the captions "Summary" and "Risk
Factors" and elsewhere herein or incorporated by reference regarding Trico's
financial position and liquidity, its strategic alternatives, future capital
needs, exploration, development and capital expenditures of the oil and gas
industry, business strategies, and other plans and objectives of management of
the Company for future operations and activities, are forward-looking
statements. These statements are based on certain assumptions and analyses
made by the Company in light of its experience and its perception of historical
trends, current conditions, expected future developments and other factors it
believes are appropriate under the circumstances. Such statements are subject
to risks and uncertainties, including the risk factors discussed above, general
economic and business conditions, the business opportunities that may be
presented to and pursued by the Company, changes in law or regulations and
other factors, many of which are beyond the control of the Company. Although
Trico believes that the expectations reflected in such forward-looking
statements are reasonable, it can give no assurance that such expectations will
prove to have been correct. Prospective investors are therefore cautioned that
any such statements are not guarantees of future performance and the actual
results or developments may differ materially from those projected in the
forward-looking statements. Important factors that could cause actual results
to differ materially from Trico's expectations are disclosed in this
Prospectus.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
New Notes offered hereby. In consideration for issuing the New Notes as
contemplated in this Prospectus, the Company will receive in exchange a like
principal amount of Old Notes, the terms of which are identical in all material
respects to the New Notes. The Old Notes surrendered in exchange for the New
Notes will be retired and canceled and cannot be reissued. Accordingly,
issuance of the New Notes will not result in any change in capitalization of
the Company.
CAPITALIZATION
The following table sets forth the consolidated unaudited capitalization
of the Company as of June 30, 1998. This table should be read in conjunction
with the Company's consolidated financial statements and respective notes
thereto incorporated by reference herein.
<TABLE>
<CAPTION>
JUNE 30, 1998
-------------
<S> <C>
(Dollars in thousands)
Long-term debt, including current maturities:
8-1/2% Senior Notes due 2005................................................ $ 280,000
Bank debt................................................................... 125,451
-------------
Total long-term debt.......................................................... 405,451
-------------
Stockholders' equity:
Preferred stock, $.01 par value per share; 5,000,000 shares authorized; no shares
outstanding............................................................. ---
Common Stock, $.01 par value per share; 40,000,000 shares authorized; 20,423,448
issued and 20,351,416 outstanding (1)................................... 204
Additional paid-in capital.................................................. 218,770
Retained earnings........................................................... 66,874
Accumulated other comprehensive expense..................................... (6,651)
Treasury stock (72,032 shares).............................................. (1)
-------------
Total stockholders' equity.............................................. 279,196
-------------
Total capitalization.................................................... $ 684,647
=============
</TABLE>
(1)Excludes an aggregate of 1,585,480 shares of Common Stock issuable as of
June 30, 1998 upon exercise of options granted under the Company's stock
option plans.
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The following table sets forth selected consolidated financial and
operating data for the dates and periods indicated. The selected consolidated
financial data for the two month period ended December 31, 1993 and for each of
the years ended December 31, 1994, 1995, 1996 and 1997 and as of December 31,
1993, 1994, 1995, 1996 and 1997 is derived from the Company's audited
consolidated financial statements and notes thereto. The selected consolidated
financial data as of June 30, 1998 and for the six month periods then ended are
derived from the unaudited consolidated statements of the Company for such
periods. In the opinion of management, the unaudited financial statements of
the Company reflect all adjustments (consisting of only normal recurring
adjustments) necessary for fair presentation of the financial condition and
results of operations for these periods. This information should be read in
conjunction with the consolidated financial statements and notes thereto and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" set forth in the Company's Annual Report on Form 10-K for the year
ended December 31, 1997 and Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998 incorporated by reference into this Prospectus. The financial
information for the ten month period ended October 28, 1993 reflects operating
results for the vessels acquired by the Company from Chrysler Capital
Corporation ("Chrysler") in October 1993.
<TABLE>
<CAPTION>
Ten months Two months
ended ended Six months
October 28, December 31, YEAR ENDED DECEMBER 31, ENDED JUNE 30,
---------- ------------ ----------------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1993(1) 1993(1) 1994 1995 1996 1997 1997 1998
(Financial data in thousands,except per share amounts)
|
INCOME STATEMENT DATA: |
Total revenues.......... $ 26,871 |$ 6,145 $ 29,034 $ 26,698 $ 53,484 $ 125,480 $ 49,785 $ 101,829
Direct operating |
expenses: |
Direct vessel |
operating expenses... 17,386 | 3,075 17,929 17,533 24,459 42,188 17,357 34,016
General and |
administrative... 1,412 | 256 2,057 2,509 3,277 5,736 2,732 4,770
Amortization of marine |
inspection costs... 1,176 | 222 1,490 1,930 2,158 3,021 1,274 3,730
Revenues less direct |
operating expenses.. $ 6,897 | --- --- --- --- --- --- ---
========
Depreciation and |
amortization......... | 502 2,786 2,740 4,478 12,734 4,676 14,344
|----------- --------- --------- --------- ---------- --------- ----------
Operating income........ | 2,090 4,772 1,986 19,112 61,801 23,746 44,969
Interest expense........ | 620 3,767 3,850 2,282 7,994 1,514 13,581
Amortization of deferred |
financing costs...... | 60 344 381 263 372 35 855
Gain on sale of assets.. | --- --- (244) (59) (252) (253) (608)
Other income, net....... | --- (51) (32) (79) (594) (80) (741)
Income tax expense |
(benefit)............ | 564 226 (670) 5,814 18,982 7,885 10,314
Extraordinary item, net of |
taxes................ | --- --- --- (917) --- --- ---
Net income (loss)....... |$ 846 $ 486 $ (1,299) $ 9,974 $ 35,299 $ 14,645 $ 21,568
|=========== ========= ========= ========= ========== ========= ==========
Basic earnings per common |
share(2): |
Income (loss) before |
extraordinary item.. |$ 0.14 $ 0.08 $ (0.21) $ 0.99 $ 2.22 $ 0.94 $ 1.06
Extraordinary item, |
net of taxes....... | --- --- --- (0.09) --- --- ---
|----------- --------- --------- -------- ---------- -------- ---------
Net income (loss).... |$ 0.14 $ 0.08 $ (0.21) $ 0.90 $ 2.22 $ 0.94 $ 1.06
Average common shares |
outstanding..... | 6,040 6,020 6,101 11,045 15,895 15,551 20,318
Diluted earnings per |
common share(2): |
Income (loss) before |
extraordinary item.. |$ 0.14 $ 0.08 $ (0.21) $ 0.88 $ 2.11 $ 0.87 $ 1.02
Extraordinary item, |
net of taxes........ | --- --- --- (0.07) --- --- ---
Net income (loss).... |$ 0.14 $ 0.08 $ (0.21) $ 0.81 $ 2.11 $ 0.87 $ 1.02
|=========== ======== ======== ======== ========= ======= ========
Average common shares |
outstanding..... | 6,040 6,020 6,101 12,381 16,759 16,859 21,098
|=========== ======== ======== ======== ========= ======= ========
OTHER FINANCIAL DATA: |
Capital expenditures: |
Acquisitions......... | --- --- 1,475 71,031 377,315 37,141
Vessel construction/ |
major upgrades....... | --- 30 3,474 7,232 33,543 4,986 58,871
Maintenance and other | 17 2,141 2,509 3,164 11,629 5,886 18,531
RATIOS: |
Earnings to fixed charges | 3.1x 1.2x ---(3) 7.7x 7.5x 15.5x 3.2x
</TABLE>
<TABLE>
<CAPTION>
Ten Two
months months Six months
ended ended ended
October 28, December 31, YEAR ENDED DECEMBER 31, JUNE 30,
----------- ------------ -------------------------------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1993(1) 1993(1) 1994 1995 1996 1997 1997 1998
------- | ------- ------ ------ ------ ------ ------ -----
OPERATING DATA: |
Supply boats: |
Average number of vessels............ 16.0 | 16.0 16.0 16.0 21.2 42.0 36.9 49.4
Average vessel utilization |
rate(4)............................. 85% | 90% 77% 78% 94% 85% 86% 70%
Average vessel day rate(5)........... $ 2,833 |$ 3,253 $ 3,057 $ 3,060 $ 4,917 $ 7,377 $ 6,833 $ 8,111
Supply/Anchor handling boats (North |
Sea) (6): |
Average number of vessels............ --- | --- --- --- --- 1.4 --- 16.6
Average vessel utilization rate(4).. --- | --- --- --- --- 97% --- 94%
Average vessel day rate(5).......... --- | --- --- --- --- $ 14,056 --- $ 14,320
Lift boats: |
Average number of vessels........... 5.0 | 5.0 5.0 5.9 6.0 6.0 6.0 6.0
Average vessel utilization rate(4).. 70% | 57% 57% 45% 67% 71% 69% 61%
Average vessel day rate(5).......... $ 4,735 |$ 4,970 $ 5,017 $ 4,656 $ 4,995 $ 5,955 $ 5,507 $ 6,434
Crew/line handling boats:(7) |
Average number of vessels........... 24.0 | 23.0 22.3 16.8 23.3 23.8 24.5 22.6
Average vessel utilization rate(4).. 93% | 91% 82% 85% 95% 97% 97% 95%
Average vessel day rate(5).......... $ 1,401 |$ 1,500 $ 1,465 $ 1,480 $ 1,579 $ 1,964 $ 1,919 $ 2,081
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------------------------------- June 30,
<S> <C> <C> <C> <C> <C> <C>
1993 1994 1995 1996 1997 1998
-------- -------- -------- -------- -------- ---------
(In thousands)
BALANCE SHEET DATA:
Working capital (deficit), including
current maturities of long-term
debt..................................... $ (2,704) $ 1,550 $ (844) $ 10,073 $ 7,831 $ 13,373
Property and equipment, net............... 45,191 38,508 39,264 119,142 505,056 546,444
Total assets.............................. 55,207 51,419 52,113 143,355 698,781 760,115
Long-term debt............................ 37,560 35,452 36,780 21,000 359,385 391,006
Stockholders' equity...................... 6,450 7,002 5,712 103,980 261,500 279,196
</TABLE>
(1) Reflects the historical results of operations of the Company for
the two months ended December 31, 1993 and the historical results
of operations for the vessels acquired from Chrysler on October
29, 1993, for the ten months ended October 28, 1993.
Accordingly, interest expense, other income, net, income tax
expense, depreciation and amortization and net income are not
presented for such vessels because such items would be based on
Chrysler's historical cost and borrowings and are not relevant to
the ongoing results of the Company.
(2) Share and per share amounts have been adjusted to reflect a 100%
stock dividend effective June 9, 1997.
(3) Earnings were insufficient to cover fixed charges, and fixed
charges exceeded earnings by approximately $2.0 million.
(4) Average utilization rates are average rates for all vessels based
on a 365-day year. Vessels are considered utilized when they are
being operated or being mobilized/demobilized under contracts with
customers.
(5) Average day rates are the average of revenue per day per vessel
under contract.
(6) All of the Company's Supply/Anchor handling boats (North Sea) were
acquired in December 1997.
(7) Average utilization and day rates for all line handling vessels
reflect the contract rates for the Company's unconsolidated
Brazilian operating company.
THE EXCHANGE OFFER
PURPOSE AND EFFECT
The Company's 8 1/2 % Senior Notes due 2005 were originally sold
by the Company in 1997 pursuant to three separate private transactions
that were not subject to the registration requirements of the Securities
Act. Each series of 8 1/2 % Senior Notes due 2005 originally issued by
the Company (Series A, C and E) was the subject of an exchange offer
pursuant to which holders of the unregistered Series A, C and E Notes
were given an opportunity to exchange their Series A, C and E Notes,
respectively, for Series B, D and F Notes, respectively, which had
similar terms but were registered under the Securities Act and,
therefore, freely tradeable. The Company is conducting this Exchange
Offer and has included therein the Series B, D and F Notes, although
freely tradeable, in order to allow all of its 8-1/2% Senior Notes due
2005 to trade as a single issue. The Company believes that this will
increase the liquidity of the Notes.
The Exchange Offer is not being made to, nor will the Company
accept surrenders for exchange from, holders of Old Notes in any
jurisdiction in which this Exchange Offer or the acceptance thereof
would not be in compliance with the securities or blue sky laws of such
jurisdiction.
Participation in the Exchange Offer is voluntary and holders
should carefully consider whether to accept. Holders of the Old Notes
are urged to consult their financial and tax advisors in making their
own decisions on whether to participate in the Exchange Offer.
SPECIAL REQUIREMENTS OF HOLDERS OF SERIES A NOTES
Because holders of the Series A Notes acquired the Series A Notes
in a private transaction not subject to the Securities Act, in order to
participate in the Exchange Offer, a holder of Series A Notes must
represent to the Company, among other things, that (i) the New Notes
acquired in exchange for Series A Notes pursuant to the Exchange Offer
are being obtained in the ordinary course of such holder's business,
(ii) such holder is not engaging in and does not intend to engage in a
distribution of the New Notes, (iii) such holder does not have an
arrangement or understanding with any person to participate in the
distribution of the New Notes and (iv) such holder is not an
"affiliate," as defined under Rule 405 promulgated under the Securities
Act, of the Company. The Company has not requested, and does not intend
to request, an interpretation by the staff of the Commission with
respect to whether the New Notes issued pursuant to the Exchange Offer
in exchange for the Series A Notes may be offered for sale, resold or
otherwise transferred by any holder without compliance with the
registration and prospectus delivery provisions of the Securities Act.
Based on interpretations by the staff of the Commission set forth in no-
action letters issued to third parties unrelated to the Company and the
Guarantors, the Company and the Guarantors believe that New Notes issued
pursuant to the Exchange Offer in exchange for Series A Notes may be
offered for resale, resold and otherwise transferred by holders thereof
(other than any such holder or such other person that is an "affiliate"
of the Company within the meaning of Rule 405 under the Securities Act),
without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that (i) the New Notes are
acquired in the ordinary course of such holder's business, (ii) such
holder is not engaging in and does not intend to engage in a
distribution of the New Notes, and (iii) such holder does not have an
arrangement or understanding with any person to participate in the
distribution of the New Notes. Any holder who tenders Series A Notes in
the Exchange Offer with the intention to participate, or for the purpose
of participating, in a distribution of the New Notes or who is an
affiliate of the Company may not rely upon such interpretation by the
staff of the Commission and, in the absence of an exemption therefrom,
must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any secondary resale
transaction. Failure to comply with such requirements in such instance
may result in such holder incurring liabilities under the Securities Act
for which the holder is not indemnified by the Company. Each broker-
dealer that receives New Notes for its own account in exchange for
Series A Notes, where those Series A Notes were acquired by the broker-
dealer as a result of its market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in
connection with any resale of these New Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
CONSEQUENCES OF FAILURE TO EXCHANGE
Old Notes which are not tendered for exchange in the Exchange
Offer will remain outstanding and interest thereon will continue to
accrue. Following the completion of the Exchange Offer, holders of
Series A Notes not tendered will continue to own restricted securities
within the meaning of Rule 144 of the Securities Act. Accordingly, the
liquidity of the market for a holder's Series A Notes could be adversely
affected upon completion of the Exchange Offer if the holder does not
participate in the Exchange Offer. In addition, failure of a holder of
Old Notes to exchange such Old Notes for New Notes could result in a
decrease in the liquidity of the market for the particular series of Old
Notes not exchanged.
TERMS OF THE EXCHANGE OFFER
General
Upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal, the Company will accept any
and all Old Notes validly tendered and not withdrawn prior to 5:00 p.m.,
New York City time, on the Expiration Date. The Company will issue
$1,000 principal amount of New Notes in exchange for each $1,000
principal amount of outstanding Old Notes accepted in the Exchange
Offer. Holders may tender some or all of their Old Notes pursuant to
the Exchange Offer. However, Old Notes may be tendered only in integral
multiples of $1,000 in principal amount.
The form and terms of the New Notes are identical in all material
respects to the form and terms of the Old Notes except, in the case of
the Series A Notes, that the New Notes are being registered under the
Securities Act and, therefore, will not bear legends restricting their
transfer. The New Notes will evidence the same debt as the Old Notes,
will be issued pursuant to, and entitled to the benefits of, the
Indenture. The Exchange Offer is not conditioned upon any minimum
aggregate principle amount of Old Notes being tendered for exchange.
As of the date of this Prospectus, the Old Notes representing
$280,000,000 aggregate principal amount were outstanding. This
Prospectus, together with the Letter of Transmittal, is being sent to
all registered holders of Old Notes and to others believed to have
beneficial interests in the Old Notes. Holders of Old Notes do not have
any appraisal or dissenters' rights under the General Corporation Law of
the State of Delaware or the Old Indentures in connection with the
Exchange Offer. The Company intends to conduct the Exchange Offer in
accordance with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission promulgated thereunder.
The Company will be deemed to have accepted validly tendered Old
Notes when, as and if the Company has given oral or written notice
thereof to the Exchange Agent. The Exchange Agent will act as agent for
the tendering holders for the purpose of receiving the New Notes from
the Company and delivering the New Notes to such holders. If any
tendered Old Notes are not accepted for exchange because of an invalid
tender, the occurrence of certain other events set forth herein or
otherwise, certificates for any such unaccepted Old Notes will be
returned, without expense, to the tendering holder thereof as promptly
as practicable after the Expiration Date.
Holders who tender Old Notes in the Exchange Offer will not be
required to pay brokerage commissions or fees or, subject to the
instructions in the Letter of Transmittal, transfer taxes with respect
to the exchange of Old Notes pursuant to the Exchange Offer. The
Company will pay all charges and expenses, other than certain applicable
taxes, in connection with the Exchange Offer. See "--Fees and
Expenses."
Expiration Date; Extensions; Amendments
The term "Expiration Date" shall mean 5:00 p.m., New York City
time, on _____, 1998, unless the Company, in its sole discretion,
extends the Exchange Offer, in which case the term "Expiration Date"
shall mean the latest date and time to which the Exchange Offer is
extended. In order to extend the Exchange Offer, the Company will
notify the Exchange Agent and each registered holder of any extension by
oral or written notice prior to 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
During any extension of the Exchange Offer, all Old Notes previously
tendered pursuant to the Exchange Offer and not withdrawn will remain
subject to the Exchange Offer. The date of the exchange of the New
Notes for Old Notes will be the first Nasdaq National Market ("NNM")
trading day following the Expiration Date.
The Company reserves the right, in its sole discretion, (i) to
delay accepting any Old Notes, to extend the Exchange Offer or, if any
of the conditions set forth under "The Exchange Offer -- Conditions to
Exchange Offer" have not been satisfied and have not been waived by the
Company, to terminate the Exchange Offer, by giving oral or written
notice of such delay, extension or termination to the Exchange Agent, or
(ii) to amend the terms of the Exchange Offer in any manner deemed by it
to be advantageous to the holders of the Old Notes. Any such delay in
acceptance, extension, termination or amendment will be followed as
promptly as practicable by oral or written notice thereof to the
registered holders. If the Exchange Offer is amended in any manner
determined by the Company to constitute a material change, the Company
will promptly disclose such amendment by means of a prospectus
supplement that will be distributed to the registered holders, and the
Company will extend the Exchange Offer for a period of time, depending
upon the significance of the amendment and the manner of disclosure to
the registered holders, if the Exchange Offer would otherwise expire
during such period.
Interest on the New Notes
The New Notes will bear interest payable semi-annually on February
1 and August 1 of each year, commencing February 1, 1999. Holders of
New Notes of record on January 15, 1999 will receive interest on
February 1, 1999 from the date of issuance of the New Notes, plus an
amount equal to the accrued interest on the Old Notes from the last date
on which interest was paid on the Old Notes exchanged therefor, August
1, 1998, to the date of exchange thereof. Consequently, assuming the
Exchange Offer is consummated prior to the record date in respect of the
February 1, 1999 interest payment for the Old Notes, holders who
exchange their Old Notes for New Notes will receive the same interest
payment on February 1, 1999 that they would have received had they not
accepted the Exchange Offer. Interest on the Old Notes accepted for
exchange will cease to accrue upon issuance of the New Notes.
Procedures for Tendering Old Notes
The tender to the Company of Old Notes by a holder thereof
pursuant to one of the procedures set forth below will constitute an
agreement between such holder and the Company in accordance with the
terms and subject to the conditions set forth herein and in the Letter
of Transmittal. A holder of the Old Notes may tender such Old Notes by
(i) properly completing, signing and dating a Letter of Transmittal or a
facsimile thereof (all references in this Prospectus to a Letter of
Transmittal shall be deemed to include a facsimile thereof) and
delivering the same, together with any corresponding certificate or
certificates representing the Old Notes being tendered (if in
certificated form) and any required signature guarantees, to the
Exchange Agent at its address set forth in the Letter of Transmittal on
or prior to the Expiration Date (or complying with the procedure for
book-entry transfer described below), or (ii) complying with the
guaranteed delivery procedures described below.
If tendered Old Notes are registered in the name of the signer of
the Letter of Transmittal and the New Notes to be issued in exchange
therefor are to be issued (and any untendered Old Notes are to be
reissued) in the name of the registered holder (which term, for the
purposes described herein, shall include any participant in DTC (also
referred to as a book-entry facility) whose name appears on a security
listing as the owner of Old Notes), the signature of such signer need
not be guaranteed. In any other case, the tendered Old Notes must be
endorsed or accompanied by written instruments of transfer in form
satisfactory to the Company and duly executed by the registered holder
and the signature on the endorsement or instrument of transfer must be
guaranteed by an eligible guarantor institution that is a member of or a
participant in the Securities Transfer Agents Medallion Program, the New
York Stock Exchange Medallion Signature Program, the Stock Exchange
Medallion Program or an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible
Institution"). If the New Notes or Old Notes not exchanged are to be
delivered to an address other than that of the registered holder
appearing on the note register for the Old Notes, the signature in the
Letter of Transmittal must be guaranteed by an Eligible Institution.
THE METHOD OF DELIVERY OF OLD NOTES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION
AND RISK OF THE HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED
THAT REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED,
BE USED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE
DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO LETTER OF
TRANSMITTAL OR OLD NOTES SHOULD BE SENT TO THE COMPANY. ONLY HOLDERS OF
OLD NOTES MAY TENDER SUCH OLD NOTES IN THE EXCHANGE OFFER. HOLDERS MAY
REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST
COMPANIES, OR NOMINEES TO EFFECT THESE TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of
a broker, dealer, commercial bank, trust company, or other nominee and
who wishes to tender should contact the registered holder promptly and
instruct the registered holder to tender on the beneficial owner's
behalf. If the beneficial owner wishes to tender on the owner's own
behalf, the owner must, prior to completing and executing the Letter of
Transmittal and delivering the owner's Old Notes, either make
appropriate arrangements to register ownership of the Old Notes in the
beneficial owner's name or obtain a properly completed bond power from
the registered holder. The transfer of registered ownership may take
considerable time.
The Company understands that the Exchange Agent has confirmed with
DTC that any financial institution that is a participant in DTC's system
may utilize DTC's Automated Tender Offer Program ("ATOP") to tender Old
Notes. The Company further understands that the Exchange Agent will
request, within two business days after the date the Exchange Offer
commences, that DTC establish an account with respect to the Old Notes
for the purpose of facilitating the Exchange Offer, and any participant
may make book-entry delivery of Old Notes by causing DTC to transfer
such Old Notes into the Exchange Agent's account in accordance with
DTC's ATOP procedures for transfer. However, the exchange of the Old
Notes so tendered will only be made after timely confirmation (a "Book-
Entry Confirmation") of such book-entry transfer and timely receipt by
the Exchange Agent of an Agent's Message (as defined in the next
sentence), and any other documents required by the Letter of
Transmittal. The term "Agent's Message" means a message, transmitted by
DTC and received by the Exchange Agent and forming a part of Book-Entry
Confirmation, which states that DTC has received an express
acknowledgment from a participant tendering Old Notes which are the
subject of such Book-Entry Confirmation and that such participant has
received and agrees to be bound by the terms of the Letter of
Transmittal and that the Company may enforce such agreement against such
participant.
A tender will be deemed to have been received as of the date when
(i) the tendering holder's properly completed and duly signed Letter of
Transmittal accompanied by the Old Notes (or a confirmation of book-
entry transfer of such Old Notes into the Exchange Agent's account at
DTC), is received by the Exchange Agent, or (ii) a Notice of Guaranteed
Delivery or letter, telegram or facsimile transmission to similar effect
from an Eligible Institution is received by the Exchange Agent.
Issuances of New Notes in exchange for Old Notes tendered pursuant to a
Notice of Guaranteed Delivery or letter, telegram or facsimile
transmission to similar effect by an Eligible Institution will be made
only against submission of a duly signed Letter of Transmittal (and any
other required documents) and deposit of the tendered Old Notes.
All questions as to the validity, form, eligibility (including
time of receipt), acceptance, and withdrawal of tendered Old Notes will
be determined by the Company, in its sole discretion, which
determination will be final and binding. The Company reserves the
absolute right to reject any or all tenders not in proper form or the
acceptance for exchange of which may, in the opinion of counsel for the
Company, be unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of any Old Notes. The Company's
interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final
and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured
within such time as the Company shall determine. Although the Company
intends to notify holders of defects or irregularities with respect to
tenders of Old Notes, neither the Company, the Exchange Agent, nor any
other person shall be under any duty to give notification of any defects
or irregularities in tenders or incur any liability for failure to give
such notification. Tenders of Old Notes will not be deemed to have been
made until such defects or irregularities have been cured or waived.
Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering
holders, unless otherwise provided in the Letter of Transmittal, as soon
as practicable following the Expiration Date.
In addition, the Company reserves the right in its sole discretion
to purchase or make offers for any Old Notes that remain outstanding
after the Expiration Date or, as set forth under "Conditions to the
Exchange Offer," to terminate the Exchange Offer and, to the extent
permitted by applicable law, purchase Old Notes in the open market, in
privately negotiated transactions, or otherwise. The terms of any such
purchases or offers could differ from the terms of the Exchange Offer.
In all cases, issuance of New Notes for Old Notes that are
accepted for exchange pursuant to the Exchange Offer will be made only
after timely receipt by the Exchange Agent of certificates for such Old
Notes or a timely Book-Entry Confirmation of such Old Notes into the
Exchange Agent's account at DTC, a properly completed and duly executed
Letter of Transmittal (or, with respect to DTC and its participants,
electronic instructions in which the tendering holder acknowledges its
receipt of and agreement to be bound by the Letter of Transmittal), and
all other required documents. If any tendered Old Notes are not
accepted for any reason set forth in the terms and conditions of the
Exchange Offer or if Old Notes are submitted for a greater principal
amount than the holder desires to exchange, such unaccepted or non-
exchanged Old Notes will be returned without expense to the tendering
Holder thereof (or, in the case of Old Notes tendered by book-entry
transfer into the Exchange Agent's account at DTC pursuant to the book-
entry transfer procedures described below, such nonexchanged Old Notes
will be credited to an account maintained with such book-entry transfer
facility) as promptly as practicable after the expiration or termination
of the Exchange Offer.
Each broker-dealer that receives New Notes for its own account in
exchange for Series A Notes, where the Series A Notes were acquired by
such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus
in connection with any resale of such New Notes.
Guaranteed Delivery Procedures
If the holder desires to accept the Exchange Offer and time will
not permit a Letter of Transmittal or Old Notes to reach the Exchange
Agent before the Expiration Date or the procedure for book-entry
transfer cannot be completed on a timely basis, a tender may be effected
if the Exchange Agent has received at its office, on or prior to the
Expiration Date, a letter, telegram or facsimile transmission from an
Eligible Institution setting forth the name and address of the tendering
holder, the name(s) in which the Old Notes are registered and the
certificate number(s) of the Old Notes to be tendered, and stating that
the tender is being made thereby and guaranteeing that, within three NNM
trading days after the date of execution of such letter, telegram or
facsimile transmission by the Eligible Institution, such Old Notes, in
proper form for transfer (or a confirmation of book-entry transfer of
such Old Notes into the Exchange Agent's account at DTC), will be
delivered by such Eligible Institution together with a properly
completed and duly executed Letter of Transmittal (and any other
required documents). Unless Old Notes being tendered by the above-
described method are deposited with the Exchange Agent within the time
period set forth above (accompanied or preceded by a properly completed
Letter of Transmittal and any other required documents), the Company
may, at its option, reject the tender. Copies of a Notice of Guaranteed
Delivery which may be used by Eligible Institutions for the purposes
described in this paragraph are available from the Exchange Agent.
Terms and Conditions of the Letter of Transmittal
The Letter of Transmittal contains, among other things, certain
terms and conditions which are summarized below and are part of the
Exchange Offer.
Each holder who participates in the Exchange Offer by exchanging
Series A Notes will be required to represent that any New Notes received
by it will be acquired in the ordinary course of its business, that such
holder is not participating in, and has no arrangement with any person
to participate in, the distribution (within the meaning of the
Securities Act) of the New Notes, and that such holder is not an
affiliate of the Company.
Old Notes tendered in exchange for New Notes (or a timely
confirmation of a book-entry transfer of such Old Notes into the
Exchange Agent's account at DTC) must be received by the Exchange Agent,
with the Letter of Transmittal and any other required documents, by the
Expiration Date or within the time periods set forth above pursuant to a
Notice of Guaranteed Delivery from an Eligible Institution. Each holder
tendering the Old Notes for exchange sells, assigns and transfers the
Old Notes to the Exchange Agent, as agent of the Company, and
irrevocably constitutes and appoints the Exchange Agent as the holder's
agent and attorney-in-fact to cause the Old Notes to be transferred and
exchanged. The holder warrants that it has full power and authority to
tender, exchange, sell, assign and transfer the Old Notes and to acquire
the New Notes issuable upon the exchange of such tendered Old Notes,
that the Exchange Agent, as agent of the Company, will acquire good and
unencumbered title to the tendered Old Notes, free and clear of all
liens, restrictions, charges and encumbrances, and that the Old Notes
tendered for exchange are not subject to any adverse claims when
accepted by the Exchange Agent, as agent of the Company. The holder
also warrants and agrees that it will, upon request, execute and deliver
any additional documents deemed by the Company or the Exchange Agent to
be necessary or desirable to complete the exchange, sale, assignment and
transfer of the Old Notes. All authority conferred or agreed to be
conferred in the Letter of Transmittal by the holder will survive the
death, incapacity or dissolution of the holder and any obligation of the
holder shall be binding upon the heirs, personal representatives,
successors and assigns of such holder.
Withdrawal Rights
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date unless previously accepted for exchange.
To withdraw a tender of Old Notes in the Exchange Offer, a
written, facsimile or (for DTC participation) electronic ATOP
transmission notice of withdrawal must be received by the Exchange Agent
at its address set forth herein prior to 5:00 p.m., New York City time,
on the Expiration Date prior to acceptance for exchange thereof by the
Company. Any such notice of withdrawal must (i) specify the name of the
person having deposited the Old Notes to be withdrawn (the "Depositor"),
(ii) identify the Old Notes to be withdrawn (including the certificate
number or numbers and principal amount of such Old Notes), (iii) contain
a statement that such holder is withdrawing its election to have such
Old Notes exchanged, (iv) be signed by the holder in the same manner as
the original signature on the Letter of Transmittal by which such Old
Notes were tendered (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee
register the transfer of such Old Notes in the name of the person
withdrawing the tender, and (v) specify the name in which any such Old
Notes are to be registered, if different from that of the Depositor. If
Old Notes have been tendered pursuant to the procedure for book-entry
transfer, any notice of withdrawal must specify the name and number of
the account at the book-entry transfer facility. All questions as to
the validity, form, and eligibility (including time of receipt) of such
notices will be determined by the Company, whose determination shall be
final and binding on all parties. Any Old Notes so withdrawn will be
deemed not to have been validly tendered for purposes of the Exchange
Offer, and no New Notes will be issued with respect thereto unless the
Old Notes so withdrawn are validly returned. Any Old Notes which have
been tendered but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder as soon as
practicable after withdrawal, rejection of tender, or termination of the
Exchange Offer. Properly withdrawn Old Notes may be retendered by
following one of the procedures (described above) under "-- Procedures
for Tendering Old Notes" at any time on or prior to the Expiration Date.
Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer, the
Company will not be required to accept for exchange, or to issue New
Notes in exchange for, any Old Notes and may terminate or amend the
Exchange Offer if at any time before the acceptance of such Old Notes
for exchange or the exchange of the New Notes for such Old Notes, the
Company determines that the Exchange Offer violates applicable law or
Commission policy.
If the Company determines that it may terminate the Exchange
Offer, as set forth above, the Company may (i) refuse to accept any Old
Notes and return any Old Notes that have been tendered to the holders
thereof, (ii) extend the Exchange Offer and retain all Old Notes
tendered prior to the Expiration Date, subject to the rights of such
holders of tendered Old Notes to withdraw their tendered Old Notes or
(iii) waive such termination event with respect to the Exchange Offer
and accept all properly tendered Old Notes that have not been withdrawn.
If such waiver constitutes a material change in the Exchange Offer, the
Company will disclose such change by means of a supplement to this
Prospectus that will be distributed to each registered holder of Old
Notes, and the Company will extend the Exchange Offer for a period of
time, depending upon the significance of the waiver and the manner of
disclosure to the registered holders of the Old Notes, if the Exchange
Offer would otherwise expire during such period.
The foregoing conditions are for the sole benefit of the Company
and may be asserted by the Company regardless of the circumstances
giving rise to any such condition or may be waived by the Company in
whole or in part at any time and from time to time in its sole
discretion. The failure by the Company at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and
each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
In addition, the Company will not accept for exchange any Old
Notes tendered, and no New Notes will be issued in exchange for, any
such Old Notes, if at such time any stop order shall be threatened or in
effect with respect to the Registration Statement of which this
Prospectus constitutes a part or the qualification of the Indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). In any such event the Company is required to use every
reasonable effort to obtain the withdrawal of any stop order at the
earliest possible time.
EXCHANGE AGENT
Chase Bank of Texas, National Association has been appointed as
Exchange Agent for the Exchange Offer. Questions and requests for
assistance and requests for additional copies of this Prospectus or of
the Letter of Transmittal should be directed to the Exchange Agent
addressed as follows:
For Information by Telephone:
(214) 672-5125
or
(800) 275-2048
By Registered or Certified Mail: By Hand or Overnight Delivery
Service:
Chase Bank of Texas, National Chase Bank of Texas, National
Association Association
Corporate Trust Services Corporate Trust Services
P. O. Box 2320 1201 Main Street, 18th Floor
Dallas, Texas 75221-2320 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
By Facsimile Transmission (for Eligible Institutions only):
(214) 672-5746
(Facsimile Confirmation)
(214) 672-5125
or
(800) 275-2048
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company.
The principal solicitation is being made by mail; however, additional
solicitations may be made by telecopy, telephone or in person by
officers and regular employees of the Company. No additional
compensation will be paid to any such officers and employees who engage
in soliciting tenders. The Company will not make any payments to
brokers, dealers or other persons soliciting acceptances of the Exchange
Offer. The Company, however, will pay the Exchange Agent reasonable and
customary fees for its services and will reimburse the Exchange Agent
for its reasonable out-of-pocket expenses in connection therewith. The
Company may also pay brokerage houses and other custodians, nominees and
fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this Prospectus, Letters of Transmittal and related
documents to the beneficial owners of the Old Notes and in handling or
forwarding tenders for exchange.
The cash expenses to be incurred in connection with the Exchange
Offer, including fees and expenses of the Exchange Agent, accounting,
legal and related fees and expenses, will be paid by the Company.
DESCRIPTION OF THE NEW NOTES
GENERAL
The Series A/B, D and F Notes were issued pursuant to the Old
Indentures, which were dated July 21, 1997, November 14, 1997 and
December 24, 1997, respectively, between the Company, the Guarantors and
Chase Bank of Texas, National Association (formerly known as Texas
Commerce Bank National Association), as trustee (the "Trustee"), the
terms of which are substantially identical to those of the Indenture.
The New Notes will be issued under the Indenture, which will be
qualified under the Trust Indenture Act upon the effectiveness of the
Registration Statement of which this Prospectus forms a part. The terms
of the New Notes will include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act. The
New Notes will be subject to all such terms, and prospective investors
are referred to the Indenture and the Trust Indenture Act for a
statement thereof. The following summary of certain provisions of the
Indenture does not purport to be complete. Copies of the Indenture and
the Old Indentures are available as set forth under "--Additional
Information." The definitions of certain terms used in the following
summary are set forth below under "--Certain Definitions." As used in
this "Description of the New Notes," the "Company" means Trico Marine
Services, Inc., but not any of its subsidiaries.
The New Notes will be general unsecured obligations of the
Company, ranking pari passu in right of payment with all other future
senior borrowings of the Company and senior in right of payment to any
subordinated indebtedness incurred by the Company in the future and on a
parity with any Old Notes that remain outstanding after completion of
the Exchange Offer. The Notes will be effectively subordinated,
however, to all future secured obligations of the Company and its
Subsidiaries to the extent of the assets securing such obligations and
to all current and future obligations of the Subsidiaries of the Company
that are not Guarantors. At June 30, 1998, the Company had $405.5
million in outstanding Indebtedness, $125.5 million of which was
secured. The Indenture permits the Company and its Subsidiaries to
incur additional indebtedness, including additional secured
indebtedness, under certain circumstances. See "Risk Factors--
Substantial Indebtedness," "Capitalization" and "--Certain Covenants--
Incurrence of Indebtedness and Issuance of Preferred Stock."
As of the date of the Indenture, all of the Company's principal
operating Subsidiaries are Restricted Subsidiaries. Under certain
circumstances, the Company will be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries
will not be subject to many of the restrictive covenants set forth in
the Indenture.
PRINCIPAL, MATURITY AND INTEREST
The New Notes will be limited in aggregate principal amount to
$280.0 million and will mature on August 1, 2005. Interest on the New
Notes will accrue at the rate of 8.50% per annum and will be payable
semi-annually in arrears on February 1 and August 1 of each year,
commencing on February 1, 1999, to holders of record on the immediately
preceding January 15 and July 15. Interest on the New Notes will
accrue from the most recent date to which interest has been paid on the
Old Notes for which the New Notes are exchanged. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day
months. Principal of and premium and interest, if any, on the New Notes
will be payable at the office or agency of the Company maintained for
such purpose or, at the option of the Company, payment of interest may
be made by check mailed to holders of the New Notes at their respective
addresses set forth in the register of holders; provided, however, that
all payments with respect to New Notes, the holders of which have given
wire transfer instructions to the Company, will be required to be made
by wire transfer of immediately available funds to the accounts
specified by the holders thereof. Until otherwise designated by the
Company, the Company's office or agency will be the office of the
Trustee maintained for such purpose. The New Notes will be issued in
denominations of $1,000 and integral multiples thereof.
SUBSIDIARY GUARANTEES
The Company's payment obligations under the New Notes will be
jointly and severally guaranteed (the "Subsidiary Guarantees") by all of
the Company's present and future Significant Subsidiaries
("Guarantors"). The obligations of each Guarantor under its Subsidiary
Guarantee will be a general unsecured obligation of such Guarantor,
ranking pari passu in right of payment with all other current or future
senior borrowings of such Guarantor, including borrowings under the
Credit Facility, and senior in right of payment to any subordinated
indebtedness, if any, incurred by such Guarantor in the future. The
Subsidiary Guarantees will be effectively subordinated, however, to all
current and future secured obligations of the Guarantors, including
borrowings under the Credit Facility.
The Indenture provides that no Guarantor may consolidate with or
merge with or into (whether or not such Guarantor is the surviving
Person) another Person (other than the Company or another Guarantor),
whether or not affiliated with such Guarantor, unless (i) subject to the
provisions of the following paragraph, the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) shall
execute a Guarantee and deliver an Opinion of Counsel in accordance with
the terms of the Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; (iii) such
Guarantor, or any Person formed by or surviving any such consolidation
or merger, would have Consolidated Net Worth (immediately after giving
effect to such transaction), equal to or greater than the Consolidated
Net Worth of such Guarantor immediately preceding the transaction and
(iv) the Company would be permitted by virtue of the Company's pro forma
Consolidated Interest Coverage Ratio, immediately after giving effect to
such transaction, to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test set forth in
the covenant described below the caption "--Certain Covenants--
Incurrence of Indebtedness and Issuance of Preferred Stock."
The Indenture provides that, in the event of a sale or other
disposition (including by way of merger or consolidation) of all of the
assets or Capital Stock of any Guarantor, then such Guarantor will be
released and relieved of any obligations under its Subsidiary Guarantee;
provided, however, that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of
the Indenture. See "--Repurchase at the Option of Holders--Asset
Sales." In addition, the Indenture provides that, in the event the
Board of Directors designates a Guarantor to be an Unrestricted
Subsidiary, then such Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee, provided that such
designation is conducted in accordance with the applicable provisions of
the Indenture.
OPTIONAL REDEMPTION
The New Notes will not be redeemable at the Company's option prior
to August 1, 2001. Thereafter, the New Notes will be subject to
redemption at any time at the option of the Company, in whole or in
part, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon to the
applicable redemption date, if redeemed during the twelve-month period
beginning on August 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2001................................................ 104.250%
2002................................................ 102.834%
2003................................................ 101.417%
2004 and thereafter................................. 100.000%
Notwithstanding the foregoing, the Company may at any time prior
to August 1, 2001, at its option, redeem the New 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, on or prior to July 17,
2000, the Company may redeem up to 35% of the aggregate principal amount
of New Notes at a redemption price of 108.5 % of the principal amount
thereof, plus accrued and unpaid interest, 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 (the New Notes plus any Old Notes that remain
outstanding after completion of the Exchange Offer) remains outstanding
immediately after the occurrence of each such redemption and (b) each
such redemption occurs within 60 days of the date of the closing of each
such Qualified Equity Offering.
SELECTION AND NOTICE
If less than all of the New Notes are to be redeemed at any time,
selection of New Notes for redemption will be made by the Trustee on a
pro rata basis, by lot or by such method as the Trustee shall deem fair
and appropriate; provided, however, that no New Notes of $1,000 or less
shall be redeemed in part. Notices of redemption shall be mailed by
first class mail at least 30 but not more than 60 days before the
redemption date to each holder of New Notes to be redeemed at its
registered address. Notices of redemption may not be conditional. If
any New Note is to be redeemed in part only, the notice of redemption
that relates to such New Note shall state the portion of the principal
amount thereof to be redeemed. A separate New Note in principal amount
equal to the unredeemed portion thereof will be issued in the name of
the holder thereof upon cancellation of the original New Note. New
Notes called for redemption become due on the date fixed for redemption.
On and after the redemption date, interest ceases to accrue on New Notes
or portions of them called for redemption.
MANDATORY REDEMPTION
Except as set forth below under "--Repurchase at the Option of
Holders," the Company is not required to make mandatory redemption or
sinking fund payments with respect to the New Notes.
REPURCHASE AT THE OPTION OF HOLDERS
Change of Control
The Indenture provides that, upon the occurrence of a Change of
Control, the Company will be required to make an offer (a "Change of
Control Offer") to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of each holder's New 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 will mail a notice to each holder of New Notes and
the Trustee describing the transaction that constitutes the Change of
Control and offering to repurchase New Notes on the date specified in
such notice, which date shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed (the "Change of Control
Payment Date"), pursuant to the procedures required by the Indenture and
described in such notice. The Company will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of New Notes as a result of
a Change of Control.
On or before the Change of Control Payment Date, the Company will,
to the extent lawful, (a) accept for payment all New 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 New Notes or portions thereof so tendered and
(c) deliver or cause to be delivered to the Trustee the New Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of New Notes or portions thereof being purchased by the
Company. The Paying Agent will promptly mail to each holder of New
Notes so tendered the Change of Control Payment for such New Notes, and
the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each holder a separate New Note equal in
principal amount to any unpurchased portion of the New Notes
surrendered, if any; provided, however, that each such New Note will be
in a principal amount of $1,000 or an integral multiple thereof. The
Company will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment
Date.
Except as described above with respect to a Change of Control, the
Indenture does not contain provisions that permit the holders of the New
Notes to require that the Company repurchase or redeem the New Notes in
the event of a takeover, recapitalization or similar transaction. In
addition, the Company could enter into certain transactions, including
acquisitions, refinancing or other recapitalizations, that could affect
the Company's capital structure or the value of the New Notes, but that
would not constitute a Change of Control. The occurrence of a Change of
Control may result in a default under the Credit Facility and give the
lenders thereunder the right to require the Company to repay all
outstanding obligations thereunder. The Company's ability to repurchase
New Notes following a Change of Control may also be limited by the
Company's then existing financial resources.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in the Indenture applicable to a Change of
Control Offer made by the Company and purchases all New Notes validly
tendered and not withdrawn under such Change of Control Offer.
A "Change of Control" will be deemed to have occurred upon the
occurrence of any of the following: (a) the sale, lease, transfer,
conveyance or other disposition (other than by merger or consolidation),
in one or a series of related transactions, of all or substantially all
of the assets of the Company and its Subsidiaries, taken as a whole, (b)
the adoption of a plan relating to the liquidation or dissolution of the
Company, (c) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as such term is used in Section 13(d)(3) of the Exchange Act)
becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly through
one or more intermediaries, of more than 50% of the voting power of the
outstanding voting stock of the Company or (d) the first day on which
more than a majority of the members of the Board of Directors are not
Continuing Directors; provided, however, that a transaction in which the
Company becomes a Subsidiary of another Person (other than a Person that
is an individual) shall not constitute a Change of Control if (i) the
stockholders of the Company immediately prior to such transaction
"beneficially own" (as such term is defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act), directly or indirectly through one or more
intermediaries, at least a majority of the voting power of the
outstanding voting stock of the Company immediately following the
consummation of such transaction and (ii) immediately following the
consummation of such transaction, no "person" (as such term is defined
above), other than such other Person (but including the holders of the
Equity Interests of such other Person), "beneficially owns" (as such
term is defined above), directly or indirectly through one or more
intermediaries, more than 50% of the voting power of the outstanding
voting stock of the Company. For purposes of this definition, a time
charter of vessels to customers in the ordinary course of business shall
not be deemed to be a "lease" under clause (a) above.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors who (a) was a member of the Board of
Directors on 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.
Asset Sales
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless (a) the Company or such Restricted Subsidiary, as the case may
be, receives consideration at the time of such Asset Sale at least equal
to the fair market value (as determined in accordance with the
definition of such term, the results of which determination shall be set
forth in an Officer's Certificate delivered to the Trustee) of the
assets or Equity Interests issued or sold or otherwise disposed of and
(b) at least 75% of the consideration therefor received by the Company
or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; provided, however, that the amount of (i) any liabilities
(as shown on the Company's or such Restricted Subsidiary's most recent
balance sheet) of the Company or such Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms
subordinated to the New Notes or any guarantee thereof) that are assumed
by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from
further liability and (ii) any securities, notes or other obligations
received by the Company or such Restricted Subsidiary from such
transferee that are immediately converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash received)
shall be deemed to be cash for purposes of this provision.
Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any such Restricted Subsidiary may apply such
Net Proceeds to (a) permanently repay the principal of any secured
Indebtedness (to the extent of the fair value of the assets securing
such Indebtedness, as determined by the Board of Directors) or (b) to
acquire (including by way of a purchase of assets or stock, merger,
consolidation or otherwise) Productive Assets. (Any such Net Proceeds
that are applied to the acquisition of Productive Assets pursuant to any
binding agreement to construct any new marine vessel useful in the
business of the Company or any of its Restricted Subsidiaries shall be
deemed to have been applied for such purpose within such 365-day period
so long as they are so applied within 18 months of the effective date of
such agreement but no later than two years after the date of receipt of
such Net Proceeds.) Pending the final application of any such Net
Proceeds, the Company or any such Restricted Subsidiary may temporarily
reduce outstanding revolving credit borrowings, including borrowings
under the Credit Facility, or otherwise invest such Net Proceeds in any
manner that is not prohibited by the Indenture. Any Net Proceeds from
Asset Sales that are not applied or invested as provided in the first
sentence of this paragraph will be deemed to constitute "Excess
Proceeds."
When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company will be required to make an offer to all holders of Notes
(an "Asset Sale Offer") to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of purchase, in
accordance with the procedures set forth in the Indenture; provided,
however, that, if the Company is required to apply such Excess Proceeds
to repurchase, or to offer to repurchase, any Pari Passu Indebtedness,
the Company shall only be required to offer to repurchase the maximum
principal amount of Notes that may be purchased out of the amount of
such Excess Proceeds multiplied by a fraction, the numerator of which is
the aggregate principal amount of Notes outstanding and the denominator
of which is the aggregate principal amount of Notes outstanding plus the
aggregate principal amount of Pari Passu Indebtedness outstanding. To
the extent that the aggregate principal amount of Notes tendered
pursuant to an Asset Sale Offer is less than the amount that the Company
is required to repurchase, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal
amount of Notes surrendered by holders thereof exceeds the amount that
the Company is required to repurchase, the Trustee shall select the
Notes to be purchased on a pro rata basis. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset at zero.
For purposes of this paragraph, any reference herein to "Notes" shall be
deemed to include the New Notes and any Old Notes that remain
outstanding after completion of the Exchange Offer.
CERTAIN COVENANTS
Restricted Payments
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly,
(a) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any such
payment in connection with any merger or consolidation with any merger
or consolidation involving the Company) or to the direct or indirect
holders of the Company's Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company); (b) purchase, redeem or
otherwise acquire or retire for value (including without limitation, in
connection with any merger or consolidation involving the Company) any
Equity Interests of the Company (other than any such Equity Interests
owned by the Company or any Wholly Owned Restricted Subsidiary of the
Company); (c) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any
Indebtedness that is subordinated to the New Notes, except a payment of
interest or principal at Stated Maturity; or (d) make any Restricted
Investment (all such payments and other actions set forth in clauses (a)
through (d) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Interest Coverage Ratio test set forth in
the first paragraph of the covenant described below under the caption "-
- -Incurrence of Indebtedness and Issuance of Preferred Stock;" and
(iii) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its Restricted
Subsidiaries after 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 or Disqualified Stock or convertible debt securities that have
been converted into Disqualified Stock), plus (C) to the extent that any
Restricted Investment that was made after July 21, 1997 is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (1) the cash
return of capital with respect to such Restricted Investment (less the
cost of disposition, if any) and (2) the initial amount of such
Restricted Investment, plus (D) in the event that any Unrestricted
Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1)
an amount equal to the fair market value of the Company's Investments in
such Restricted Subsidiary and (2) the amount of Restricted Investments
previously made by the Company and its Restricted Subsidiaries in such
Unrestricted Subsidiary, plus (E) $5.0 million.
The foregoing provisions will not prohibit any of the following
(a) the payment of any dividend within 60 days after the date of
declaration thereof if at said date of declaration such payment would
have complied with the provisions of the Indenture; (b) the redemption,
repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness or Equity Interests of the Company in exchange
for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, other Equity
Interests of the Company (other than any Disqualified Stock), provided
that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition
shall be excluded from clause (iii)(B) of the preceding paragraph; (c)
the defeasance, redemption, repurchase, retirement or other acquisition
of subordinated Indebtedness with the net cash proceeds from an
incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted
Subsidiary of the Company to the Company or any of its Wholly Owned
Restricted Subsidiaries; (e) so long as no Default or Event of Default
shall have occurred and be continuing, the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the
Company held by any employee of the Company or any of its Restricted
Subsidiaries, provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $500,000 in any calendar year; and (f) the acquisition of Equity
Interests by the Company in connection with the exercise of stock
options or stock appreciation rights by way of cashless exercise or in
connection with the satisfaction of withholding tax obligations.
The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if such designation would not cause a
Default. For purposes of making such determination, all outstanding
Investments by the Company and its Restricted Subsidiaries (except to
the extent repaid in cash) in the Subsidiary so designated will be
deemed to be Restricted Payments at the time of such designation. All
such outstanding Investments will be deemed to constitute Investments in
an amount equal to the greater of (a) the net book value of such
Investments at the time of such designation and (b) the fair market
value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be
the fair market value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the
Company or such Restricted Subsidiary, as the case may be, pursuant to
the Restricted Payment. The fair market value of any non-cash
Restricted Payment shall be determined in the manner contemplated by the
definition of the term "fair market value," and the results of such
determination shall be evidenced by an Officers' Certificate delivered
to the Trustee. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by the
covenant "Restricted Payments" were computed.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to
(collectively, "incur" or an "incurrence") any Indebtedness and that the
Company will not issue any Disqualified Stock and will not permit any of
its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company and its Restricted Subsidiaries may
incur Indebtedness, and the Company may issue Disqualified Stock, if the
Consolidated Interest Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have
been at least 2.25 to 1, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the
additional Indebtedness or Disqualified Stock had been issued or
incurred at the beginning of such four-quarter period.
The foregoing provisions will not apply to:
(a) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness under the Credit Facility in an
aggregate principal amount at any one time outstanding not to
exceed $65.0 million, plus any fees, premiums, expenses (including
costs of collection), indemnities and similar amounts payable in
connection with such Indebtedness, and less any amounts repaid
permanently in accordance with the covenant described under the
caption "--Repurchase at the Option of Holders--Asset Sales";
(b) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(c) the incurrence by the Company and its Restricted
Subsidiaries of Hedging Obligations;
(d) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by the New Notes, the
Subsidiary Guarantees, the Indenture, the Old Notes, subsidiary
guarantees of the Old Notes and the Old Indentures;
(e) the incurrence of intercompany Indebtedness between or
among the Company and any of its Wholly Owned Restricted
Subsidiaries, provided that any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held
by a Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company, or any sale or other transfer of any
such Indebtedness to a Person that is neither the Company nor a
Wholly Owned Restricted Subsidiary of the Company, shall be deemed
to constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be;
(f) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Restricted
Subsidiary thereof in the ordinary course of business, including
guarantees or obligations of the Company or any Restricted
Subsidiary thereof with respect to letters of credit supporting
such bid, performance or surety obligations (in each case other
than for an obligation for money borrowed); and
(g) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Debt in exchange for, or the
net proceeds of which are used to extend, refinance, renew,
replace, defease or refund Indebtedness that was permitted by the
Indenture to be incurred (other than pursuant to clause (a) or (e)
of this covenant).
In the event that the incurrence of any Indebtedness would be
permitted by the first paragraph set forth above or one or more of the
provisions set forth in the second paragraph above, the Company may
designate (in the form of an Officers' Certificate delivered to the
Trustee) the particular provision of the Indenture pursuant to which it
is incurring such Indebtedness.
Liens
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or suffer to exist any Lien on any asset now owned
or hereafter acquired, or any income or profits therefrom or assign or
convey any right to receive income therefrom, except Permitted Liens, to
secure (a) any Indebtedness of the Company or such Restricted Subsidiary
(if it is not also a Guarantor), unless prior to, or contemporaneously
therewith, the New 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 New Notes or the Subsidiary Guarantees, the Lien securing such
Indebtedness will be subordinated and junior to the Lien securing the
New Notes or the Subsidiary Guarantees, as the case may be, with the
same relative priority as such Indebtedness has with respect to the New
Notes or the Subsidiary Guarantees.
Sale-and-Leaseback Transactions
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, enter into any sale-and-
leaseback transactions; provided, however, that the Company or any
Restricted Subsidiary, as applicable, may enter into a sale-and-
leaseback transaction if (i) the Company or such Restricted Subsidiary
could have (a) incurred Indebtedness in an amount equal to the
Attributable Indebtedness relating to such sale-and-leaseback
transaction pursuant to the Consolidated Interest Coverage Ratio test
set forth in the first paragraph of the covenant described above under
the caption "--Incurrence of Indebtedness and Issuance of Preferred
Stock" and (b) incurred a Lien to secure such Indebtedness pursuant to
the covenant described under the caption "--Liens," (ii) the gross cash
proceeds of such sale-and-leaseback transaction are at least equal to
the fair market value (as determined in accordance with the definition
of such term, the results of which determination shall be set forth in
an Officers' Certificate delivered to the Trustee) of the property that
is the subject of such sale-and-leaseback transaction and (iii) the
transfer of assets in such sale-and-leaseback transaction is permitted
by, and the Company applies the proceeds of such transaction in
compliance with, the covenant described above under the caption "--
Repurchase at the Option of Holders--Asset Sales."
Issuances and Sales of Capital Stock of Wholly Owned Restricted
Subsidiaries
The Indenture provides that the Company (i) will not, and will not
permit any Wholly Owned Restricted Subsidiary of the Company to,
transfer, convey, sell or otherwise dispose of any Capital Stock of any
Wholly Owned Restricted Subsidiary of the Company to any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the
Company), unless (a) such transfer, conveyance, sale, or other
disposition is of all the Capital Stock of such Wholly Owned Restricted
Subsidiary and (b) the Net Proceeds from such transfer, conveyance,
sale, or other disposition are applied in accordance with the covenant
described above under the caption "--Repurchase At Option Of Holders--
Asset Sales," and (ii) will not permit any Wholly Owned Restricted
Subsidiary of the Company to issue any of its Equity Interests to any
Person other than to the Company or a Wholly Owned Restricted Subsidiary
of the Company; except, in the case of both clauses (i) and (ii) above,
with respect to (1) dispositions or issuances by a Wholly Owned
Restricted Subsidiary of the Company as contemplated in clauses (a) and
(b) of the definition of "Wholly Owned Restricted Subsidiary" or (2)
other dispositions or issuances of up to 35% of the outstanding Capital
Stock of a Wholly Owned Restricted Subsidiary of the Company, provided
that, after giving pro forma effect thereto, the Investment of the
Company and its Wholly Owned Restricted Subsidiaries in all Restricted
Subsidiaries that are not Wholly Owned Restricted Subsidiaries of the
Company, determined on a consolidated basis in accordance with GAAP,
does not exceed 15% of Consolidated Net Tangible Assets of the Company.
Dividend and Other Payment Restrictions Affecting Subsidiaries
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary
to (a)(i) pay dividends or make any other distributions to the Company
or any of its Restricted Subsidiaries on its Capital Stock or with
respect to any other interest or participation in, or measured by, its
profits, or (ii) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries, (b) make loans or advances to the Company or
any of its Restricted Subsidiaries or (c) transfer any of its properties
or assets to the Company or any of its Restricted Subsidiaries, except
for such encumbrances or restrictions existing under or by reason of (1)
the Credit Facility or Existing Indebtedness, each as in effect on July
21, 1997, (2) the Indenture, the New Notes, the Old Notes and the Old
Indentures, (3) applicable law, (4) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any
of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of
the Indenture to be incurred, (5) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (6) purchase money obligations for
property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (c) above on the property
so acquired, (7) customary provisions in bona fide contracts for the
sale of property or assets or (8) Permitted Refinancing Indebtedness
with respect to any Indebtedness referred to in clauses (1) and (2)
above, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are not materially
more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced.
Merger, Consolidation, or Sale of Assets
The Indenture provides that the Company may not consolidate or
merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets in one
or more related transactions, to another Person unless (a) the Company
is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which
such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the
laws of the United States, any state thereof or the District of
Columbia, (b) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the New Notes
and the Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee, (c) immediately after such
transaction no Default or Event of Default exists and (d) except in the
case of a merger of the Company with or into a Wholly Owned Subsidiary
of the Company, the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (A) will have Consolidated Net Worth immediately
after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) will,
at the time of such transaction and after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Interest Coverage
Ratio test set forth in the first paragraph of the covenant described
above under the caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock."
Transaction with Affiliates
The Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or
make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an "Affiliate Transaction"), unless (a) such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted Subsidiary
with an unrelated Person or, if there is no such comparable transaction,
on terms that are fair and reasonable to the Company or such Restricted
Subsidiary, and (b) the Company delivers to the Trustee (i) with respect
to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $1.0 million, a
resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with
clause (a) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, other than any such transactions with a joint venture
engaged in the business of providing marine support vessels and related
services to the oil and gas industry (or a business that is reasonably
complementary or related thereto as determined in good faith by the
Board of Directors), an opinion as to the fairness to the Company or the
relevant Subsidiary of such Affiliate Transaction from a financial point
of view issued by an accounting, appraisal or investment banking firm
that is, in the judgment of the Board of Directors, qualified to render
such opinion and is independent with respect to the Company; provided,
however, that the following shall be deemed not to be Affiliate
Transactions: (A) any employment agreement or other employee
compensation plan or arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business of the
Company or such Restricted Subsidiary; (B) transactions between or among
the Company and its Restricted Subsidiaries; (C) Permitted Investments
and Restricted Payments that are permitted by the provisions of the
Indenture; (D) loans or advances to officers, directors and employees of
the Company or any Restricted Subsidiary made in the ordinary course of
business and consistent with past practices of the Company and its
Restricted Subsidiaries in an aggregate amount not to exceed $500,000
outstanding at any one time; (E) indemnities of officers, directors and
employees of the Company or any Restricted Subsidiary permitted by bylaw
or statutory provisions; and (F) the payment of reasonable and customary
regular fees to directors of the Company or any of its Restricted
Subsidiaries who are not employees of the Company or any Affiliate.
Additional Subsidiary Guarantees
The Indenture provides that (a) if the Company or any of its
Restricted Subsidiaries shall, after 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, as the case
may be, shall execute a Subsidiary Guarantee and deliver an opinion of
counsel in accordance with the terms of the Indenture.
Reports
Whether or not the Company is required to do so by the rules and
regulations of the Commission, the Company will file with the Commission
(unless the Commission will not accept such a filing) and, within 15
days of filing, or attempting to file, the same with the Commission,
furnish to the holders of the New Notes (a) all quarterly and annual
financial and other information with respect to the Company and its
Subsidiaries that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Company were required to file
such forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants, and (b) all current reports that would be
required to be filed with the Commission of Form 8-K if the Company were
required to file such reports.
EVENTS OF DEFAULT AND REMEDIES
The Indenture provides that each of the following constitutes an
Event of Default: (a) default for 30 days in the payment when due of
interest on the New Notes; (b) default in payment when due of the
principal of or premium, if any, on the New Notes; (c) failure by the
Company to comply with the provisions described under the caption "--
Repurchase at the Option of Holders" or "--Certain Covenants--Merger,
Consolidation, or Sale of Assets"; (d) failure by the Company for 60
days after notice to comply with any of its other agreements in the
Indenture or the New Notes; (e) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether
such Indebtedness or guarantee existed at 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 the
grace period provided in such Indebtedness (a "Payment Default") or
(ii) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $5.0 million or
more and provided, further, that if any such default is cured or waived
or any such acceleration rescinded, or such Indebtedness is repaid,
within a period of 10 days from the continuation of such default beyond
the applicable grace period or the occurrence of such acceleration, as
the case may be, such Event of Default and any consequential
acceleration of the New Notes shall be automatically rescinded, so long
as such rescission does not conflict with any judgment or decree;
(f) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which judgments
are not paid, discharged or stayed for a period of 60 days; (g) failure
by any Guarantor to perform any covenant set forth in its Subsidiary
Guarantee, or the repudiation by any Guarantor of its obligations under
its Subsidiary Guarantee or the unenforceability of any Subsidiary
Guarantee against a Guarantor for any reason and (h) certain events of
bankruptcy or insolvency with respect to the Company or any Guarantor.
If any Event of Default occurs and is continuing, the Trustee or
the holders of at least 25% in principal amount of the then outstanding
New Notes may declare all the New Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency with
respect to the Company any Guarantor, all outstanding New Notes will
become due and payable without further action or notice. The holders of
a majority in principal amount of the then outstanding New 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 that have
become due solely because of the acceleration) have been cured or
waived. Holders of the New Notes may not enforce the Indenture or the
New Notes except as provided in the Indenture. Subject to certain
limitations, holders of a majority in principal amount of the then
outstanding New Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from holders of the New Notes
notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem
the New Notes pursuant to the optional redemption provisions of the
Indenture, an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law upon the acceleration of
the New Notes.
The holders of a majority in principal amount of the New Notes
then outstanding by notice to the Trustee may on behalf of the holders
of all of the New Notes waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of the principal of or interest on the
Notes.
The Company will be required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company will
be required, upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of
Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the New Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
holder of New Notes by accepting a New Note waives and releases all such
liability. The waiver and release are part of the consideration for
issuance of the New Notes. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all
of the obligations of itself and the Guarantors discharged with respect
to the outstanding New Notes ("Legal Defeasance") except for (a) the
rights of holders of outstanding New Notes to receive payments in
respect of the principal of and premium and interest, if any, on such
New Notes when such payments are due from the trust referred to below,
(b) the Company's obligations with respect to the New Notes concerning
issuing temporary New Notes, registration of New Notes, mutilated,
destroyed, lost or stolen New Notes and the maintenance of an office or
agency for payment and money for security payments held in trust, (c)
the rights, powers, trusts, duties and immunities of the Trustee, and
the Company's obligations in connection therewith and (d) the Legal
Defeasance provisions of the Indenture. In addition, the Company may,
at its option and at any time, elect to have the obligations of the
Company released with respect to certain covenants that are described in
the Indenture ("Covenant Defeasance") and thereafter any omission to
comply with such obligations shall not constitute a Default or Event of
Default with respect to the New Notes. In the event Covenant Defeasance
occurs, certain events (not including non-payment, bankruptcy,
receivership, rehabilitation and insolvency events) described under
"Events of Default and Remedies" will no longer constitute Events of
Default with respect to the New Notes.
In order to exercise either Legal Defeasance or Covenant
Defeasance, (i) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the holders of the New Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of and premium and interest, if any, on the outstanding New Notes on the
stated maturity or on the applicable redemption date, as the case may
be, and the Company must specify whether the New Notes are being
defeased to maturity or to a particular redemption date, (ii) in the
case of Legal Defeasance, the Company shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable
to the Trustee confirming that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
(B) since 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 New Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred, (iii) in the case of Covenant Defeasance,
the Company shall have delivered to the Trustee an opinion of counsel in
the United States reasonably acceptable to the Trustee confirming that
the holders of the outstanding New Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred, (iv) no Default or
Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to such deposit), (v) such Legal
Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or
instrument (other than the Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound, (vi) the Company must have delivered
to the Trustee an opinion of counsel to the effect that the trust funds
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, (vii) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of New Notes over the other
creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others and (viii) the
Company must deliver to the Trustee an Officers' Certificate and an
opinion of counsel, each stating that all conditions precedent provided
for relating to the Legal Defeasance or the Covenant Defeasance have
been complied with.
TRANSFER AND EXCHANGE
A holder of New Notes may transfer or exchange New Notes in
accordance with the Indenture. The Registrar and the Trustee may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a holder
to pay any taxes and fees required by law or permitted by the Indenture.
The Company will not be required to transfer or exchange any New Note
selected for redemption. Also, the Company will not be required to
transfer or exchange any New Note for a period of 15 days before a
selection of New Notes to be redeemed.
The registered holder of a New Note will be treated as the owner
of it for all purposes, and all references to "holders" in this
"Description of the Notes" are to registered holders unless otherwise
indicated.
AMENDMENT AND WAIVER
Except as provided below, the Indenture or the New Notes may be
amended with the consent of the holders of at least a majority in
principal amount of the New Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, New Notes), and any existing default
or compliance with any provision of the Indenture or the New Notes may
be waived with the consent of the holders of a majority in principal
amount of the then outstanding New Notes (including consents obtained in
connection with a tender offer or exchange offer for New Notes).
Without the consent of each holder affected, an amendment or
waiver may not (with respect to any New Notes held by a non-consenting
Holder): (a) reduce the principal amount of New Notes whose holders must
consent to an amendment or waiver, (b) reduce the principal of or change
the fixed maturity of any New Note or alter the provisions with respect
to the redemption of the New Notes (other than provisions relating to
the covenants described above under the caption "--Repurchase at the
Option of Holders"), (c) reduce the rate of or change the time for
payment of interest on any New Note, (d) waive a Default or Event of
Default in the payment of principal of or premium or interest on the New
Notes (except a rescission of acceleration of the New Notes by the
holders of at least a majority in principal amount of the New Notes and
a waiver of the payment default that resulted from such acceleration),
(e) make any New Note payable in money other than that stated in the New
Notes, (f) make any change in the provisions of the Indenture relating
to waivers of past defaults or the rights of holders of New Notes to
receive payments of principal of or premium or interest on the New Notes
(except as permitted in clause (g) hereof), (g) waive a redemption
payment with respect to any New Note (other than a payment required by
one of the covenants described above under the caption "--Repurchase at
the Option of Holders"), (h) alter the ranking of the New Notes relative
to other Indebtedness of the Company or (i) make any change in the
foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any holder
of New Notes, the Company, the Guarantors and the Trustee may amend or
supplement the Indenture or the New Notes to cure any ambiguity, defect
or inconsistency, to provide for uncertificated New Notes in addition to
or in place of certificated New Notes, to provide for the assumption of
the Company's obligations to holders of New Notes in the case of a
merger or consolidation, to make any change that would provide any
additional rights or benefits to the holders of New Notes or that does
not adversely affect the legal rights under the Indenture of any such
holder, to secure the New Notes pursuant to the requirements of the
"Liens" covenant, to add any additional Guarantor or to release any
Guarantor from its Subsidiary Guarantee, in each case as provided in the
Indenture, or to comply with requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any New Notes for or as an
inducement to any consent, waiver or amendment of any terms or
provisions of the Indenture or the New Notes, unless such consideration
is offered to be paid or agreed to be paid to all holders of the New
Notes which so consent, waive or agree to amend in the time frame set
forth in solicitation documents relating to such consent, waiver or
agreement.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment
of claims in certain cases, or to realize on certain property received
in respect of any such claim as security or otherwise. The Trustee will
be permitted to engage in other transactions; however, if it acquires
any conflicting interest, it must eliminate such conflict within 90
days, apply to the Commission for permission to continue or resign.
The holders of a majority in principal amount of the then
outstanding New Notes will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available
to the Trustee, subject to certain exceptions. The Indenture provides
that in case an Event of Default shall occur (which shall not be cured),
the Trustee will be required, in the exercise of its power, to use the
degree of care of a prudent man in the conduct of his own affairs.
Subject to such provisions, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request
of any holder of New Notes, unless such holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
GOVERNING LAW
The Indenture, the New Notes and the Subsidiary Guarantees provide
that they are governed by the laws of the State of New York.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the
Indenture without charge by writing to Trico Marine Services, Inc., 2401
Fountainview, Suite 920, Houston, Texas 77057, Attention: Corporate
Secretary.
FORM, DENOMINATION AND REGISTRATION
Global Notes; Book Entry Form
The New Notes will be evidenced initially by one or more global
notes (the "Global Note") which will be deposited with, or on behalf of,
DTC and registered in the name of Cede & Co., as DTC's nominee or in
registered certificate form ("Certificated Notes"). Record ownership of
the Global Note may be transferred, in whole or in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
Owners of beneficial interests in the Global Note may hold their
interests in the Global Note directly through DTC if such person is a
participant in DTC or indirectly through organizations that are
participants in DTC (the "Participants"). Persons who are not
Participants may beneficially own interests in the Global Note held by
DTC only through Participants or certain banks, brokers, dealers, trust
companies and other parties that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly
("Indirect Participants"). So long as Cede & Co., as the nominee of
DTC, is the registered owner of the Global Note, Cede & Co. for all
purposes will be considered the sole holder of the Global Note. Owners
of beneficial interests in the Global Note will be entitled to have
certificates registered in their names and to receive physical delivery
of Certificated Notes.
Payment of principal of and premium and interest on the Global
Note will be made to Cede & Co., the nominee for DTC, as registered
owner of the Global Note, by wire transfer of immediately available
funds on the applicable payment date. Neither of the Company nor the
Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
The Company has been informed by DTC that, with respect to any
payment of principal of or premium or interest on the Global Note, DTC's
practice is to credit Participants' accounts on the applicable payment
date, with payments in amounts proportionate to their respective
beneficial interests in the New Notes represented by the Global Note as
shown on the records of DTC, unless DTC has reason to believe that it
will not receive payment on such payment date. Payments by Participants
to owners of beneficial interests in the New Notes represented by the
Global Note held through such Participants will be the responsibility of
such Participants, as is now the case with securities held for the
accounts of customers registered in "street name."
Transfers between Participants will be effected in the ordinary
way in accordance with DTC's rules and will be settled in immediately
available funds. The laws of some states require that certain persons
take physical delivery of securities in definitive form. Consequently,
the ability to transfer beneficial interests in a Global Note to such
persons may be limited. Because DTC can only act on behalf of
Participants, who in turn act on behalf of Indirect Participants and
certain banks and other parties, the ability of a person having a
beneficial interest in the New Notes represented by the Global Note to
pledge such interest to persons or entities that do not participate in
the DTC system, or otherwise take actions in respect of such interest,
may be affected by the lack of a physical certificate evidencing such
interest.
Neither the Company nor the Transfer Agent will have
responsibility for the performance of DTC or its Participants or
Indirect Participants of their respective obligations under the rules
and procedures governing their operations. DTC has advised the Company
that it will take any action permitted to be taken by a holder of New
Notes (including, without limitation, the presentation of New Notes for
exchange as described below) only at the direction of one or more
Participants to whose account with DTC interests in the Global Note are
credited, and only in respect of the New Notes represented by the Global
Note as to which such Participant or Participants has or have given such
direction.
DTC has also advised the Company that DTC is a limited purpose
trust company organized under the laws of the State of New York, a
member of the Federal Reserve System, a "clearing corporation" within
the meaning of the Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC was created to hold securities for its Participants and to
facilitate the clearance and settlement of securities transactions
between Participants through electronic book-entry changes to accounts
of its Participants, thereby eliminating the need for physical movement
of certificates. Participants include securities brokers and dealers,
banks, trust companies and clearing corporations and may include certain
other organizations such as the Initial Purchasers. Certain of such
Participants (or their representatives), together with other entities,
own DTC. Indirect access to the DTC system is available to others such
as banks, brokers, dealers and trust companies that clear through, or
maintain a custodial relationship with, a Participant, either directly
or indirectly.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the Global Note among Participants,
it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. If DTC
is at any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, the
Company will cause Certificated Notes to be issued in exchange for the
Global Notes.
Certificated Notes
Investors in the New Notes may request that Certificated Notes be
issued in exchange for New Notes represented by the Global Note.
Furthermore, Certificated Notes may be issued in exchange for New Notes
represented by the Global Note if no successor depositary is appointed
by the Company as set forth above. Upon any transfer of a Certified
Note, such Certificated Note will, unless the transferee requests
otherwise or the Global Note has previously been exchanged in whole for
Certificate Notes as described in the immediately preceding sentence, be
exchanged for an interest in the Global Note.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture.
Reference is made to the Indenture for a full disclosure of all such
terms, as well as any other capitalized terms used herein for which no
definition is provided.
"Affiliate" of any specified Person means an "affiliate" of such
Person, as such term is defined for purposes of Rule 144 under the
Securities Act.
"Asset Sale" means (a) the sale, lease, conveyance or other
disposition (a "disposition") of any assets or rights (including,
without limitation, by way of a sale and leaseback), excluding
disposition in the ordinary course of business (provided that the
disposition of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole will be governed by the provisions of
the Indenture described above under the caption "--Repurchase at the
Option of Holders--Change of Control" and the provisions described above
under the caption "--Certain Covenants--Merger, Consolidation, or Sale
of Assets" and not by the provisions of the Asset Sales covenant), (b)
the issue or sale by the Company or any of its Restricted Subsidiaries
of Equity Interests of any of the Company's Subsidiaries, and (c) any
Event of Loss, whether, in the case of clause (a), (b) or (c), in a
single transaction or a series of related transactions, provided that
such transaction or series of transactions (i) has a fair market value
in excess of $1.0 million or (ii) results in the payment of net proceeds
in excess of $1.0 million. Notwithstanding the foregoing, the following
transactions will be deemed not to be Asset Sales: (A) a disposition of
obsolete or excess equipment or other assets; (B) a disposition of
assets by the Company to a Wholly Owned Restricted Subsidiary or by a
Wholly Owned Restricted Subsidiary to the Company or to another Wholly
Owned Restricted Subsidiary; (C) a disposition of Equity Interests by a
Wholly Owned Restricted Subsidiary to the Company or to another Wholly
Owned Restricted Subsidiary; (D) a Permitted Investment or Restricted
Payment that is permitted by the Indenture; (E) a disposition of assets
by the Company or any of its Restricted Subsidiaries to a Person that is
an Affiliate of the Company or such Restricted Subsidiary and is engaged
in the business of providing marine support vessels and related services
to the oil and gas industry (or a business that is reasonably
complementary or related thereto as determined in good faith by the
Board of Directors), which Person is an Affiliate solely because the
Company or such Restricted Subsidiary has an Investment in such Person,
provided that such transaction complies with the covenant described
under the caption "--Certain Covenants--Transactions with Affiliates";
(F) any charter or lease of any equipment or other assets entered into
in the ordinary course of business and with respect to which the Company
or any Restricted Subsidiary thereof is the lessor, except any such
charter or lease that provides for the acquisition of such assets by the
lessee during or at the end of the term thereof for an amount that is
less than the fair market value thereof at the time the right to acquire
such assets occurs and (G) any trade or exchange by the Company or any
Restricted Subsidiary of equipment or other assets for equipment or
other assets owned or held by another Person, provided that the fair
market value of the assets traded or exchanged by the Company or such
Restricted Subsidiary (together with any cash or Cash Equivalents) is
reasonably equivalent to the fair market value of the assets (together
with any cash or Cash Equivalents) to be received by the Company or such
Restricted Subsidiary. The fair market value of any non-cash proceeds
of a disposition of assets and of any assets referred to in the
foregoing clause (G) of this definition shall be determined in the
manner contemplated in the definition of the term "fair market value,"
the results of which determination shall be set forth in an Officers'
Certificate delivered to the Trustee.
"Attributable Indebtedness" in respect of a sale-and-leaseback
transaction means, at the time of determination, the present value
(discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee for
net rental payments during the remaining term of the lease included in
such sale-and-leaseback transaction (including any period for which such
lease has been extended or may, at the option of the lessor, be
extended). As used in the preceding sentence, the "net rental payments"
under any lease for any such period shall mean the sum of rental and
other payments required to be paid with respect to such period by the
lessee thereunder, excluding any amounts required to be paid by such
lessee on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges. In the case of any lease
that is terminable by the lessee upon payment of penalty, such net
rental payment shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a
balance sheet in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a partnership or
limited liability company, partnership or membership interests (whether
general or limited), and (d) any other interest or participation that
confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) United States dollars, (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (c) certificates
of deposit and Eurodollar time deposits with maturities of six months or
less from the date of acquisition, bankers' acceptances with maturities
not exceeding six months and overnight bank deposits, in each case with
any commercial bank organized under the laws of any country that is a
member of the Organization for Economic Cooperation and Development
having capital and surplus in excess of $500 million, (d) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) above entered
into with any financial institution meeting the qualifications specified
in clause (c) above, (e) commercial paper having the highest rating
obtainable from Moody's Investors Service, Inc. or Standard & Poor's
Rating Service and in each case maturing within 270 days after the date
of acquisition, (f) deposits available for withdrawal on demand with any
commercial bank not meeting the qualifications specified in clause (c)
above, provided all such deposits do not exceed $2.0 million in the
aggregate at any one time, and (g) money market mutual funds
substantially all of the assets of which are of the type described in
the foregoing clauses (a) through (e).
"Common Stock" means the Common Stock of the Company, par value
$.01 per share.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus,
to the extent deducted or excluded in calculating Consolidated Net
Income for such period, (a) an amount equal to any extraordinary loss
plus any net loss realized in connection with an Asset Sale, (b)
provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries, (c) Consolidated Interest Expense of such
Person and its Restricted Subsidiaries and (d) depreciation and
amortization (including amortization of goodwill and other intangibles
but excluding amortization of prepaid cash expenses that were paid in a
prior period) of such Person and its Restricted Subsidiaries, in each
case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of such
Person for such period to the Consolidated Interest Expense of such
Person for such period; provided, however, that the Consolidated
Interest Coverage Ratio shall be calculated giving pro forma effect to
each of the following transactions as if each such transaction had
occurred at the beginning of the applicable four-quarter reference
period: (a) any incurrence, assumption, guarantee or redemption by the
Company or any of its Restricted Subsidiaries of any Indebtedness (other
than revolving credit borrowings) subsequent to the commencement of the
period for which the Consolidated Interest Coverage Ratio is being
calculated but prior to the date on which the event for which the
calculation of the Consolidated Interest Coverage Ratio is made (the
"Calculation Date"); (b) any acquisition that has been made by the
Company or any of its Restricted Subsidiaries, or approved and expected
to be consummated within 30 days of the Calculation Date, including, in
each case, through a merger or consolidation, and including any related
financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation
Date (in which case Consolidated Cash Flow for such reference period
shall be calculated without giving effect to clause (c) of the proviso
set forth in the definition of Consolidated Net Income); and (c) any
other transaction that may be given pro forma effect in accordance with
Article 11 of Regulation S-X as in effect from time to time; provided
further, however, that (i) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date,
shall be excluded and (ii) the Consolidated Interest Expense
attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the
obligations giving rise to such Consolidated Interest Expense will not
be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum, without duplication, of (a) the consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued (including, without limitation,
amortization of original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net payments (if
any) pursuant to Hedging Obligations but excluding amortization of debt
issuance costs) and (b) the consolidated interest expense of such Person
and its Restricted Subsidiaries that was capitalized during such period.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP, provided that (a) the Net Income
(but not loss) of any Person that is not a Restricted Subsidiary or that
is accounted for by the equity method of accounting shall be included
only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Restricted Subsidiary
thereof, (b) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its stockholders, (c) the
Net Income of any Person acquired in a pooling of interests transaction
for any period prior to the date of such acquisition shall be excluded
and (d) the cumulative effect of a change in accounting principles shall
be excluded.
"Consolidated Net Tangible Assets" means, with respect to any
Person as of any date, the sum of the amounts that would appear on a
consolidated balance sheet of such Person and its consolidated
Restricted Subsidiaries as the total assets of such Person and its
consolidated Restricted Subsidiaries, determined on a consolidated basis
in accordance with GAAP and after deducting therefrom, (a) to the extent
otherwise included, unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or development
expenses and other intangible items, and (b) the aggregate amount of
liabilities of the Company and its Restricted Subsidiaries which may be
properly classified as current liabilities (including tax accrued as
estimated), determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the sum of (a) the consolidated equity of the common
stockholders of such Person and its consolidated Restricted Subsidiaries
as of such date plus (b) the respective amounts reported on such
Person's balance sheet as of such date with respect to any series of
preferred stock (other than Disqualified Stock) that by its terms is not
entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of
such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (i)
all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to 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.
"Credit Facility" means that certain Revolving Credit Agreement,
dated as of July 26, 1996, as amended, by and among the Company, its
Subsidiaries named therein, BankBoston, N.A., Hibernia National Bank and
First National Bank of Commerce, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case as amended, restated, modified,
supplemented, extended, renewed, replaced, refinanced or restructured
from time to time, whether by the same or any other agent or agents,
lender or group of lenders, whether represented by one or more
agreements and whether one or more Subsidiaries are added or removed as
borrowers or guarantors thereunder or as parties thereto.
"Default" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures
(excluding any maturity as a result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the New Notes mature or are redeemed or retired
in full; provided, however, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof (or of any
security into which it is convertible or for which it is exchangeable)
have the right to require the issuer to repurchase such Capital Stock
(or such security into which it is convertible or for which it is
exchangeable) upon the occurrence of any of the events constituting an
Asset Sale or a Change of Control shall not constitute Disqualified
Stock if such Capital Stock (and all such securities into which it is
convertible or for which it is exchangeable) provides that the issuer
thereof will not repurchase or redeem any such Capital Stock (or any
such security into which it is convertible or for which it is
exchangeable) pursuant to such provisions prior to compliance by the
Company with the provisions of the Indenture described under the caption
"Repurchase at the Option of Holders--Change of Control" or "Repurchase
at the Option of Holders--Asset Sales," as the case may be.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Event of Loss" means, with respect to any property or asset of
the Company or any Restricted Subsidiary, (a) any damage to such
property or asset that results in an insurance settlement with respect
thereto on the basis of a total loss or a constructive or compromised
total loss or (b) the confiscation, condemnation or requisition of title
to such property or asset by any government or instrumentality or agency
thereof. An Event of Loss shall be deemed to occur as of the date of
the insurance settlement, confiscation, condemnation or requisition of
title, as applicable.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit
Facility) in existence on 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 of the United States,
which are in effect from time to time.
"Hedging Obligations" means, with respect to any person, the
obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, (b)
other agreements or arrangements designed to protect such Person against
fluctuations in interest rates and (c) any foreign currency futures
contract, option or similar agreement or arrangement designed to protect
such Person against fluctuations in foreign currency rates, in each case
to the extent such obligations are incurred in the ordinary course of
business of such Person.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money
or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof) or
banker's acceptances or representing Capital Lease Obligations or the
balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, if and to the extent
any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP. The amount of any
Indebtedness outstanding as of any date shall be (a) the accreted value
thereof, in the case of any Indebtedness that does not require current
payments of interest, and (b) the principal amount thereof, in the case
of any other Indebtedness.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of
direct or indirect loans (including guarantees by the referent Person
of, and Liens on any assets of the referent Person securing,
Indebtedness or other obligations of other Persons), advances or capital
contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are
or would be classified as investments on a balance sheet prepared in
accordance with GAAP; provided, however, that the following shall not
constitute Investments: (i) extensions of trade credit or other advances
to customers on commercially reasonable terms in accordance with normal
trade practices or otherwise in the ordinary course of business, (ii)
Hedging Obligations and (iii) endorsements of negotiable instruments and
documents in the ordinary course of business. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the
Company shall be deemed to have made an Investment on the date of any
such sale or disposition equal to the fair market value of the Equity
Interests of such Restricted Subsidiary not sold or disposed of in an
amount determined as provided in the final paragraph of the covenant
described above under the caption "--Certain Covenants--Restricted
Payments."
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of
or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction other than
a precautionary financing statement respecting a lease not intended as a
security agreement).
"Make Whole Amount" with respect to a New Note means an amount
equal to the excess, if any, of (i) the present value of the remaining
interest, premium and principal payments due on such New Note as if such
New 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 New 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 New
Notes assuming redemption of the New Notes on August 1, 2001; provided,
however, that if the Make-Whole Average Life of such New 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 New 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 New Note means the greater of
(i) the sum of the outstanding principal amount and Make-Whole Amount of
such New Note, and (ii) the redemption price of such New Note on
August 1, 2001, determined pursuant to the Indenture (104.250% of the
principal amount).
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however,
(a) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with (i) any
Asset Sale (including, without limitation, dispositions pursuant to
sale-and-leaseback transactions) or (ii) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries and (b) any extraordinary or nonrecurring gain
(but not loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset
Sale (including without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset
Sale), net of (without duplication) (a) the direct costs relating to
such Asset Sale (including, without limitation, legal, accounting and
investment banking fees, sales commissions, recording fees, title
transfer fees, title insurance premiums, appraiser fees and costs
incurred in connection with preparing such assets for sale) and any
relocation expenses incurred as a result thereof, (b) taxes paid or
estimated to be payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements), (c) amounts required to be applied to the repayment of
Indebtedness (other than under the Credit Facility) secured by a Lien on
the asset or assets that were the subject of such Asset Sale, (d) any
reserve established in accordance with GAAP or any amount placed in
escrow, in either case for adjustment in respect of the sale price of
such asset or assets, until such time as such reserve is reversed or
such escrow arrangement is terminated, in which case Net Proceeds shall
include only the amount of the reserve so reversed or the amount
returned to the Company or its Restricted Subsidiaries from such escrow
arrangement, as the case may be.
"Non-Recourse Debt" means Indebtedness (a) as to which neither the
Company nor any of its Restricted Subsidiaries (i) provides credit
support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness) or is otherwise directly or
indirectly liable (as a guarantor or otherwise) or (ii) constitutes the
lender, (b) no default with respect to which (including any rights the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or
both) the holders of Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such Indebtedness or
cause the payment thereof to be accelerated or payable prior to its
stated maturity and (c) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of
the Company or any of its Restricted Subsidiaries, except to the extent
of any Indebtedness incurred by the Company or any of its Restricted
Subsidiaries in accordance with clause (a)(i) above.
"Pari Passu Indebtedness" means, with respect to any Net Proceeds
from Assets Sales, Indebtedness of the Company and its Restricted
Subsidiaries the terms of which require the Company or such Restricted
Subsidiary to apply such Net Proceeds to offer to repurchase such
Indebtedness.
"Permitted Investments" means (a) any Investment in the Company or
in a Wholly Owned Restricted Subsidiary of the Company, (b) any
Investment in Cash Equivalents, (c) any Investment by the Company or any
Restricted Subsidiary of the Company in a Person if as a result of such
Investment (i) such Person becomes a Wholly Owned Restricted Subsidiary
of the Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys all or substantially
all of its assets to, or is liquidated into, the Company or a Wholly
Owned Restricted Subsidiary of the Company, (d) any Investment made as a
result of the receipt of non-cash consideration from (i) an Asset Sale
that was made pursuant to and in compliance with the covenant described
above under the caption "--Repurchase at the Option of Holders--Asset
Sales" or (ii) a disposition of assets that does not constitute an Asset
Sale and (e) Investments in a Person engaged principally in the business
of providing marine support vessels and related services to the oil and
gas industry or businesses reasonably complementary or related thereto
provided that the aggregate amount of such Investments pursuant to this
clause (e) in Persons that are not Restricted Subsidiaries or the
Company shall not exceed $20.0 million at any one time.
"Permitted Liens" means (a) Liens securing Indebtedness incurred
pursuant to clause (a) of the second paragraph of the covenant entitled
"--Incurrence of Indebtedness and Issuance of Preferred Stock" plus
additional Indebtedness under the Credit Facility not to exceed an
amount equal to 15% of Consolidated Net Tangible Assets, (b) Liens in
favor of the Company and its Restricted Subsidiaries, (c) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the
Company, provided that such Liens were in existence prior to its
contemplation of such merger or consolidation and do not extend to any
property other than those of the Person merged into or consolidated with
the Company or any of its Restricted Subsidiaries, (d) Liens on property
existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to its contemplation of such acquisition and do not
extend to any other property, (e) Liens to secure the performance of
statutory obligations, surety or appeal bonds, bid or performance bonds,
insurance obligations or other obligations of a like nature incurred in
the ordinary course of business, (f) Liens securing Hedging Obligations,
(g) Liens existing on 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 New Notes, such
Permitted Refinancing Indebtedness is subordinated in right of payment
to the New Notes on terms at least as favorable to the holders of New
Notes as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded and
(d) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; provided,
however, that a Restricted Subsidiary may guarantee Permitted
Refinancing Indebtedness incurred by the Company, whether or not such
Restricted Subsidiary was an obligor or guarantor of the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded,
provided further, however, that if such Permitted Refinancing
Indebtedness is subordinated to the New Notes, such guarantee shall be
subordinated to such Restricted Subsidiary's Subsidiary Guarantee to at
least the same extent.
"Productive Assets" means vessels or other assets (other than
assets that would be classified as current assets in accordance with
GAAP) of the kind used or usable by the Company or its Restricted
Subsidiaries in the business of providing marine support vessels and
related services to the oil and gas industry (or any business that is
reasonably complementary or related thereto as determined in good faith
by the Board of Directors).
"Qualified Equity Offering" means (a) any sale of Equity Interests
(other than Disqualified Stock) of the Company pursuant to an
underwritten offering registered under the Securities Act or (b) any
sale of Equity Interests (other than Disqualified Stock) of the Company
so long as, at the time of consummation of such sale, the Company has a
class of common equity securities registered pursuant to Section 12(b)
or Section 12(g) under the Exchange Act.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
"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).
"Unrestricted Subsidiary" means any Subsidiary that is designated
by the Board of Directors as an Unrestricted Subsidiary pursuant to a
resolution of the Board of Directors, but only to the extent that such
Subsidiary at the time of such designation (a) has no Indebtedness other
than Non-Recourse Debt, (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless such agreement, contract, arrangement
or understanding does not violate the terms of the Indenture described
under the caption "--Certain Covenants--Transactions with Affiliates,"
and (c) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Equity Interests or (ii) to maintain or
preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results, in each case, except
to the extent otherwise permitted by the Indenture. Any such
designation by the Board of Directors shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the resolution of the
Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted by the covenant described above under the
caption "--Certain Covenants--Restricted Payments." If, at any time,
any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to
be an Unrestricted Subsidiary for purposes of the Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under the
covenant described under the caption "--Incurrence of Indebtedness and
Issuance of Preferred Stock," the Company shall be in default of such
covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary,
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (A) such Indebtedness is
permitted under the covenant described under the caption "--Incurrence
of Indebtedness and Issuance of Preferred Stock," calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period, and (B) no Default or Event of Default
would be in existence following such designation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a)
the sum of the products obtained by multiplying (i) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest
one twelfth) that will elapse between such date and the making of such
payment, by (b) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person to the extent (a) all of the
outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned directly
or indirectly by such Person or (b) such Restricted Subsidiary is
organized in a foreign jurisdiction and is required by the applicable
laws and regulations of such foreign jurisdiction to be partially owned
by the government of such foreign jurisdiction or individual or
corporate citizens of such foreign jurisdiction in order for such
Restricted Subsidiary to transact business in such foreign jurisdiction,
provided that such Person, directly or indirectly, owns the remaining
Capital Stock or ownership interests in such Restricted Subsidiary and,
by contract or otherwise, controls the management and business of such
Restricted Subsidiary and derives the economic benefits of ownership of
such Restricted Subsidiary to substantially the same extent as if such
Subsidiary were a wholly owned Restricted Subsidiary.
LEGAL MATTERS
The validity of the Notes will be passed upon by Jones, Walker,
Waechter, Poitevent, Carr<e`>re & Den<e`>gre, L.L.P., New Orleans,
Louisiana.
EXPERTS
The Company's consolidated balance sheets as of December 31, 1996
and 1997 and the combined statements of income, stockholders' equity and
cash flows for the three years ended December 31, 1997, and related
financial statement schedules incorporated by reference in this
Prospectus and the Registration Statement of which this Prospectus forms
a part, have been incorporated herein on the reliance of the report of
PricewaterhouseCoopers LLP, independent accountants, given upon the
authority of that firm as experts in accounting and auditing.
The consolidated financial statements of Saevik Supply as of
December 31, 1996 and for the year ended December 31, 1996 incorporated
by reference in this Prospectus and the Registration Statement of which
this Prospectus forms a part, have been audited by KPMG as Gerd Leira,
independent accountants, as indicated in their report with respect
thereto, and have been incorporated herein by reference in reliance upon
the authority of said firm as experts in accounting and auditing.
The statement of assets acquired and liabilities assumed as of
December 31, 1996 and the statements of revenue less direct operating
expenses of the Viking Vessels (as defined therein) for the years ended
December 31, 1994, 1995 and 1996 incorporated by reference in this
Prospectus and the Registration Statement of which this Prospectus forms
a part, have been audited by Deloitte & Touche as Roar Skuland,
independent accountants, as indicated in their report with respect
thereto, and are incorporated herein by reference in reliance upon the
authority of said firm as experts in accounting and auditing.
NO DEALER, SALESMAN OR OTHER $280,000,000
INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE TRICO MARINE
ANY REPRESENTATIONS NOT IN, OR SERVICES, INC.
INCORPORATED IN, THIS PROSPECTUS,
IN CONNECTION WITH THE EXCHANGE Offer for All Outstanding
OFFER COVERED BY THIS PROSPECTUS. 8 1/2% Senior Notes Due 2005,
IF GIVEN OR MADE, SUCH INFORMATION Series A, B, D and F
OR REPRESENTATIONS MUST NOT BE ($280,000,000 principal amount
RELIED UPON AS HAVING BEEN outstanding)
AUTHORIZED BY THE COMPANY. THIS in Exchange for
PROSPECTUS DOES NOT CONSTITUTE AN 8 1/2% Senior Notes Due 2005, Series G
OFFER TO SELL, OR A SOLICITATION ($280,000,000 principal amount)
OF AN OFFER TO BUY, ANY SECURITY
OTHER THAN THE NEW NOTES OFFERED
HEREBY, NOR DOES IT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY ANY OF THE NEW
NOTES TO ANYONE OR BY ANYONE IN
ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT WOULD BE ____________
UNLAWFUL TO MAKE SUCH AN OFFER OR
SOLICITATION. NEITHER THE PROSPECTUS
DELIVERY OF THIS PROSPECTUS NOR ____________
ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS NOT
BEEN A CHANGE IN THE INFORMATION
SET FORTH IN THIS PROSPECTUS OR
INCORPORATED BY REFERENCE HEREIN
OR IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF. _________ , 1998
_______________
TABLE OF CONTENTS
PAGE
Available Information..................... i
Incorporation of Certain Documents
by Reference........................... i
Enforcement of Civil Liabilities.......... i
Summary................................... 1
Risk Factors.............................. 6
Use of Proceeds........................... 12
Capitalization............................ 12
Selected Consolidated Financial
and Operating Data........................ 13
The Exchange Offer........................ 15
Description of the New Notes.............. 22
Legal Matters............................. 44
Experts................................... 44
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that
a corporation may indemnify its directors and officers in a variety of
circumstances, which may include liabilities under the Securities Act of
1933, as amended (the "Securities Act"). In addition, the Registrant's
bylaws provide for the indemnification of directors and officers against
expenses and liabilities incurred in connection with defending actions
brought against them for negligence or misconduct in their official
capacities. The Registrant also has indemnity agreements with each of
its directors that provide for indemnification of such directors. The
Registrant has purchased insurance permitted by the Delaware General
Corporation Law on behalf of directors and officers, which may cover
liabilities under the Securities Act.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following is a list of all exhibits filed as part of this
Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<S> <C>
4.1 Form of Indenture by and among Trico Marine Services, Inc., 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
5 Opinion of Jones, Walker, Waechter, Poitevent, Carr<e`>re & Den<e`>gre, L.L.P. as to the
legality of the Notes.
12 Statement regarding Ratio of Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of KPMG as Gerd Leira.
23.3 Consent of Deloitte & Touche as Roar Skuland.
23.4 Consent of Jones, Walker, Waechter, Poitevent, Carr<e`>re & Den<e`>gre, L.L.P. (included in
Exhibit 5).
24.1 Power of Attorney (included in Signature Pages to the Registration Statement).
25.1 Statement of Eligibility of Chase Bank of Texas, National Association.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
ITEM 22. UNDERTAKINGS.
The Registrant hereby undertakes the following:
(a) For purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions described under Item 20 or otherwise, each of the registrants
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by any of the registrants of expenses incurred or paid
by a director, officer, or controlling person of such registrant in the
successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the registrants will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
(c) Each of the undersigned registrants hereby undertakes to
respond to requests for information that is incorporated by reference
into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form,
within one business day of receipt of such request, and to send the
incorporated document by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of
responding to the request.
(d) Each of the undersigned registrants hereby undertakes to
supply by means of a post-effective amendment all information concerning
a transaction, and the company being acquired involved therein, that was
not the subject of and included in the registration statement when it
became effective.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houma,
State of Louisiana, on September 17, 1998.
TRICO MARINE SERVICES, INC.
By:/S/ Thomas E. Fairley
Thomas E. Fairley
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Thomas E. Fairley, Ronald O. Palmer or Victor M. Perez, or
any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with
all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ Thomas E. Fairley Director, President and Chief September 17, 1998
Thomas E. Fairley Executive Office
/S/ Ronald O. Palmer Chairman of the Board September 17, 1998
Ronald O. Palmer
/S/ Victor M. Perez Vice President, Chief Financial September 17, 1998
Victor M. Perez Officer and Treasurer (Principal
Financial Officer)
/S/ Kenneth W. Bourgeois Vice President and Controller September 17, 1998
Kenneth W. Bourgeois (Principal Accounting Officer)
/S/ Benjamin F. Bailar Director September 17, 1998
Benjamin F. Bailar
/S/ H. K. Acord Director September 17, 1998
H. K. Acord
/S/ Garth H. Greimann Director September 17, 1998
Garth H. Greimann
/S/ Edward C. Hutcheson, Jr. Director September 17, 1998
Edward C. Hutcheson, Jr.
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houma,
State of Louisiana, on September 17, 1998.
TRICO MARINE ASSETS, INC.
By: /S/ Thomas E. Fairley
Thomas E. Fairley
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Thomas E. Fairley, Ronald O. Palmer or Victor M. Perez, or
any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with
all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ Thomas E. Fairley President and Chief Executive Officer September 17, 1998
Thomas E. Fairley
/S/ Ronald O. Palmer Director and Executive Vice President September 17, 1998
Ronald O. Palmer
/S/ Victor M. Perez Vice President, Chief Financial September 17, 1998
Victor M. Perez Officer and Treasurer (Principal
Financial Officer)
/S/ Kenneth W. Bourgeois Vice President and Controller September 17, 1998
Kenneth W. Bourgeois (Principal Accounting Officer)
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houma,
State of Louisiana, on September 17, 1998.
TRICO MARINE OPERATORS, INC.
By:/S/ Thomas E. Fairley
Thomas E. Fairley
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Thomas E. Fairley, Ronald O. Palmer or Victor M. Perez, or
any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with
all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ Thomas E. Fairley Director, President and Chief September 17, 1998
Thomas E. Fairley Executive Officer
/S/ Ronald O. Palmer Executive Vice President September 17, 1998
Ronald O. Palmer
/S/ Victor M. Perez Vice President, Chief Financial September 17, 1998
Victor M. Perez Officer and Treasurer (Principal
Financial Officer)
/S/ Kenneth W. Bourgeois Vice President and Controller September 17, 1998
Kenneth W. Bourgeois (Principal Accounting Officer)
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on September 17, 1998.
TRICO MARINE INTERNATIONAL HOLDINGS B.V.
By: /S/ RONALD O. PALMER
Ronald O. Palmer
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Thomas E. Fairley,
Ronald O. Palmer or Victor M. Perez, or any one of them, his true and
lawful attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ Ronald O. Palmer Director and President (Principal September 17, 1998
Ronald O. Palmer Executive Officer and Authorized
United States Representative)
/S/ Victor M. Perez Vice President and Chief Financial September 17, 1998
Victor M. Perez Officer (Principal Financial Officer)
/S/ Kenneth W. Bourgeois Vice President and Controller September 17, 1998
Kenneth W. Bourgeois (Principal Accounting Officer)
MeesPierson Trust B.V.
Director September 18, 1998
By: /S/ H. Y. Brand/W. G. Rieff
Name: H. Y. Brand/W. G. Rieff
Title: Prouratiehauder
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Oslo,
Norway, on September 11, 1998.
SAEVIK SUPPLY ASA
By: /S/ WIDAR SALBUVIK
Widar Salbuvik
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Thomas E. Fairley,
Ronald O. Palmer or Victor M. Perez, or any one of them, his true and
lawful attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
General Manager (Principal Executive,
/S/ Jon Arild GoksOyr Financial and Accounting Officer) September 10, 1998
Jon Arild Goksoyr
/S/ Thomas E. Fairley Director (Authorized United States September 17, 1998
Thomas E. Fairley Representative)
/S/ Kim Dobrowen Director September 18, 1998
Kim Dobrowen
/S/ Widar Salbuvik Director September 11, 1998
Widar Salbuvik
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Fosnavag,
Norway, on September 10, 1998.
SAEVIK SHIPPING AS
By:/S/ Jon Arild Goksoyr
Jon Arild Goksoyr
General Manager
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Thomas E. Fairley,
Ronald O. Palmer or Victor M. Perez, or any one of them, his true and
lawful attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
General Manager and Director
/S/ Jon Arild Goksoyr (Principal Executive, Financial and September 10, 1998
Jon Arild Goksoyr Accounting Officer)
_____________________ Director September 18, 1998
Widar Salbuvik
/S/ Kim Dobrowen Director September 18, 1998
Kim Dobrowen
/S/ Victor M. Perez Authorized United States September 17, 1998
Victor M. Perez Representative
</TABLE>
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
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 D hereto shall be endorsed
by manual or facsimile signature by an Officer of such Guarantor on each
Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by an Officer of such
Guarantor.
To the extent required by the provisions of Section 4.13 hereof, the
Company shall cause each of its Restricted Subsidiaries to execute a
Subsidiary Guarantee substantially in the form of Exhibit 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]
SIGNATURES
TRICO MARINE SERVICES, INC.
By
Name:
Title:
TRICO MARINE ASSETS, INC.
By
Name:
Title:
TRICO MARINE OPERATORS, INC.
By
Name:
Title:
TRICO MARINE INTERNATIONAL HOLDINGS B.V.
By
Name:
Title:
SAEVIK SUPPLY ASA
By
Name:
Title:
SAEVIK SHIPPING AS
By
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By
Mauri J. Cowen
Vice President and Trust Officer
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: ______________________
(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 _____, 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
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.
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:
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
___________________
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 _____, 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]
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:
JONES, WALKER EXHIBIT 5
Waechter, Poitevent
Carre`re & Dene`gre, L.L.P.
September 22, 1998
Trico Marine Services, Inc.
250 North American Court
Houma, Louisiana 70363
RE: Trico Marine Services, Inc.
Registration Statement on Form S-4
$280,000,000 aggregate principal amount of
8 1/2 % Series G Senior Notes due 2005 and Guarantees
Gentlemen:
We have acted as your counsel in connection with the preparation of
the registration statement on Form S-4 (the "Registration Statement") filed
by Trico Marine Services, Inc. (the "Company"), Trico Marine Assets, Inc.
("Assets"), Trico Marine Operators, Inc. ("Operators"), Trico Marine
International Holdings B.V. ("International"), Saevik Supply ASA ("Saevik
Supply") and Saevik Shipping AS ("Saevik Shipping," and together with
Assets, Operators, International and Saevik Supply, the "Guarantors") under
the Securities Act of 1933, as amended, with the Securities and Exchange
Commission (the "Commission") on the date hereof with respect to the
Company's offer to exchange (the "Exchange Offer") up to $280 million
aggregate principal amount of the Company's 8 1/2 % Series G Senior Nates
due 2005 (the "New Notes") for a like principal amount of the Company's
8 1/2 % Senior Notes due 2005, Series A, B, D and F (the "Old Notes"). The
Guarantors will guarantee (the "Guarantees") the New Notes on a senior
unsecured basis. The New Notes and Guarantees will be offered under an
Indenture dated as of September 22, 1998 (the "Indenture"), by and among
the Company, the Guarantors and Chase Bank of Texas, National Association,
as trustee, that will be executed and delivered by the parties thereto in
the form filed as an exhibit to the Registration Statement.
In so acting, we have examined originals, or photostatic or certified
copies, of the Indenture, the form of the New Notes and such records of the
Company and the Guarantors, certificates of officers of the Company and the
Guarantors and of public officials, and such other documents as we have
deemed relevant. In such examination, we have assumed the genuineness of
all signatures, that the Indenture will be executed and delivered by the
parties thereto, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the
originals of such documents.
Based upon the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. When (i) the New Notes upon consummation of the Exchange Offer
have been duly executed by the Company and authenticated by the trustee
therefor in accordance with the terms of the Indenture and (ii) the New
Notes issuable upon consummation of the Exchange Offer have been duly
delivered against receipt of Old Notes surrendered in exchange therefor,
the New Notes issuable upon consummation of the Exchange Offer will
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar law affecting the rights of creditors generally
and general principles of equity and will be entitled to the benefits of
the Indenture.
2. When (i) the New Notes upon consummation of the Exchange Offer
have been duly executed by the Company and authenticated by the trustee
therefor in accordance with the terms of the Indenture and (ii) the New
Notes issuable upon consummation of the Exchange Offer have been duly
delivered against receipt of Old Notes surrendered in exchange therefor,
the Guarantees of the New Notes issuable by each Guarantor upon
consummation of the Exchange Offer will constitute the legal, valid and
binding obligations of such Guarantor, enforceable against it in accordance
with their terms, subject to any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar law affecting the rights
of creditors generally and general principles of equity and will be
entitled to the benefits of the Indenture.
The foregoing opinion is limited in all respects to the laws of the
States of New York, Delaware and Louisiana and federal laws, and we are
expressing no opinion as to the effect of the laws of any other
jurisdiction, domestic or foreign. With respect to the opinion expressed
above as to the Guarantees of the New Notes (other than Guarantees issued
by Guarantors incorporated in Louisiana or Delaware), we have assumed for
purposes of rendering such opinion that the laws of the respective
jurisdictions of incorporation or organization of the Guarantors are
identical in all respects to the laws of the State of New York.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the prospectus
included therein under the caption "Legal Matters." In giving this
consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as
amended, or the general rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENE`GRE, L.L.P.
NEW ORLEANS OFFICE: PLACE ST. CHARLES <circle> 201 ST. CHARLES AVENUE
<circle> NEW ORLEANS, LOUISIANA 70170-5100 <circle> 504-582-8000
<circle> FAX 504-582-8012
BATON ROUGE OFFICE: FOUR UNITED PLAZA <circle> 8555 UNITED PLAZA BOULEVARD
<circle> BATON ROUGE, LOUISIANA 70809-7000 <circle> 504-231-2000 <circle>
FAX 504-231-2010
WASHINGTON, D.C. OFFICE: SUITE 245, REPUBLIC PLACE <circle> 1776 EYE STREET,
N.W. <circle> WASHINGTON, D. C. 20006 <circle> 202-828-8363 <circle> FAX
202-828-6907
LAFAYETTE OFFICE: SUITE 210 <circle> 201 RUE IBERVILLE <circle>
LAFAYETTE, LOUISIANA 70508 <circle> 318-232-5353 <circle> FAX 318-232-5415
TRICO MARINE SERVICES, INC.
EXHIBIT 12
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS
TO FIXED CHARGES
(In thousands, except ratios)
<TABLE>
<CAPTION>
TWO MONTHS SIX MONTHS
ENDED ENDED
December 31, Year ended December 31, June 30,
------------- ----------------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
1993 1994 1995(1) 1996 1997 1997 1998
---- ---- ------- ---- ---- ---- ----
Income (loss) before $ 846 $ 486 $ (1,299) $ 10,891 $ 35,299 $ 14,645 $ 21,568
extraordinary item
Income tax expense (benefit) 564 226 (670) 5,814 18,982 7,885 10,314
--------- ------ -------- ------- ------- ------ -------
Earnings from continuing
operations before income
taxes and extraordinary
item $ 1,410 $ 712 $ (1,969) $ 16,705 $ 54,281 $ 22,530 $ 31,882
========== ====== ======== ======= ======= ======= =======
Fixed charges
Interest on long-term debt $ 620 $ 3,767 $ 3,850 $ 2,282 $ 7,994 $ 1,514 $ 13,581
Amortization of deferred
financing costs 60 344 381 197 372 35 855
--------- ------ ------ ------ ------ ------ ------
Total fixed charges $ 680 $ 4,111 $ 4,231 $ 2,479 $ 8,366 $ 1,549 $ 14,436
========= ====== ====== ====== ====== ====== =======
Earnings from continuing
operations before income
taxes and fixed charges $ 2,090 $ 4,823 $ 2,262 $ 19,184 $ 62,647 $ 24,079 $ 46,318
========= ====== ====== ======= ======= ======= =======
Ratio of earnings to fixed
charges 3.1 1.2 0.5 7.7 7.5 15.5 3.2
========= ====== ====== ======= ======= ======= =======
</TABLE>
(1) Earnings were insufficient to cover fixed charges, and fixed charges
exceeded earnings by approximately $2.0 million.
<PAGE>
STATEMENT OF COMPUTATION OF PRO FORMA
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands except ratios)
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS
DECEMBER 31, ENDED
SEPTEMBER 30,
<S> <C> <C>
1996 1997
---- ----
Income before extraordinary item $ 5,066 $ 37,388
Income tax expense (benefit) 3,506 17,292
Earnings from continuing operations before income taxes and
extraordinary item $ 8,572 $ 54,680
========= =========
Fixed charges
Interest on long-term debt $ 19,162 $ 19,967
Amortization of deferred financing costs 263 144
-------- ---------
Total fixed changes $ 19,425 $ 20,111
-------- ---------
Earnings from continuing operations before income taxes and
fixed charges $ 27,997 $ 74,791
========= =========
Ratio of earnings to fixed charges 1.4 3.7
</TABLE>
COR\80127.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Trico Marine Services, Inc. on From S-4 of our reports
dated February 19, 1998, on our audits of the consolidated financial
statements and financial statements schedule of Trico Marine Services,
Inc., as of December 31, 1997 and 1996 and for the years ended December
31, 1997, 1996 and 1995. We also consent to the reference to our firm
under the captions "Experts."
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
September 18, 1998
The Board of Directors
Saevik Supply ASA
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this report of Form S-4
of our report dated March 6, 1997, with respect to the consolidated
balance sheet of Saevik Supply ASA and subsidiaries as of December 31,
1996 and the related statements of earnings and cash flows for the year
then ended, appearing in the Form S-3 (File No. 333-39597) of Trico
Marine Services, Inc.
We consent to the reference to our firm under the captions "Experts".
Aalesund, Norway
September 18, 1998
KPMG as
/s/ Gerd Leira
Gerd Leira
State Authorized Public Accountant (Norway)
VIKING VESSELS
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this report on Form S-4
of our report dated November 4, 1997, on our audit of the statements of
assets acquired and liabilities assumed for the fleet of vessels
acquired by Saevik Supply ASA from Viking Supply Ships AS (Viking
Vessels) for the year ended December 31, 1996 and the statement of
revenue less direct operating expenses for the years ended December 31,
1996, 1995 and 1994, appearing in the Form S-3 (File No. 333-39597) of
Trico Marine Services, Inc.
We also consent to the reference to our firm under the caption
"Experts".
DELOITTE & TOUCHE
Norway, September 18, 1998
/s/ Roar Skuland
Roar Skuland
State Authorized Public Accountant Norway
========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) ____
_______________________
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer Identification Number)
712 MAIN STREET, HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip code)
LEE BOOCKER, 712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002 (713) 216-2448
(Name, address and telephone number of agent for service)
TRICO MARINE SERVICES, INC.
(Exact name of obligor as specified in its charter)
SEE TABLE OF ADDITIONAL OBLIGORS BELOW
DELAWARE 72-1252405
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2401 FOUNTAIN VIEW, SUITE 920, HOUSTON, TEXAS 77057
(Address of principal executive offices) (Zip code)
8 1/2 % SENIOR NOTES DUE 2005
SERIES G
(Title of indenture securities)
========================================================================
<TABLE>
<CAPTION>
TABLE OF ADDITIONAL OBLIGORS
<S> <C> <C> <C>
ADDRESS,INCLUDING ZIP
CODE, AND TELEPHONE
NUMBER, INCLUDING AREA
STATE OR OTHER CODE, OF REGISTRANT'S
JURISDICTION OF IRS EMPLOYER PRINCIPAL EXECUTIVE
NAME INCORPORATION ID NO. OFFICES
------ --------------- -------- --------
Trico Marine Assets, Inc. Delaware 72-1252404 (1)
Trico Marine Operators, Inc. Louisiana 72-1096124 (1)
Trico Marine International Holdings B.V. The Netherlands N/A (2)
Saevik Supply ASA Kingdom of Norway N/A (3)
Saevik Shipping AS Kingdom of Norway N/A (3)
(1) 250 North American Court, Houma, Louisiana 70363
(2) Aert van Nesstrat 45, 3012 CA Rotterdam, The Netherlands
(3) P.O. Box 85, N-6090 Fosnavag, Norway
</TABLE>
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.(See Note on Page 7.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE.
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
---------------- --------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. (CONTINUED)
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION
310(B)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER
ANY SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE
INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES
ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICER OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY
EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH
CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL. C
------------- -------------- ------------ -------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
<PAGE>
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL. C
------------- -------------- ------------ -----------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO THE SECURITIES OF THE
OBLIGOR OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
WHETHER THE BENEFICIALLY OR PERCENT OF
SECURITIES HELD AS COLLATERAL CLASS
ARE VOTING SECURITY FOR REPRESENTED BY
OR NONVOTING OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS SECURITIES DEFAULT COL. C
-------------- ------------ ------------------ ---------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ------------------ ------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE (1) OWNS 10% OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ------------------ ------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE, OWNS 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OR SUCH
PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR PERCENT OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO
THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 7.)
ITEM 13. (CONTINUED)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series. (See
Note on Page 7.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
* 1. A copy of the articles of association of the trustee now in
effect.
# 2. A copy of the certificate of authority of the trustee to
commence business.
* 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors of
the Federal Reserve System under date of January 21, 1948.
+ 4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
++7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
8. Not applicable.
9. Not applicable.
NOTE REGARDING INCORPORATED EXHIBITS
Effective January 20, 1998, the name of the Trustee was changed from
Texas Commerce Bank National Association to Chase Bank of Texas, National
Association. The exhibits incorporated herein by reference, except for
Exhibit 7, were filed under the former name of the Trustee.
* Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits
to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits
to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits
to the Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits
to the Form S-3 File No. 33-65055.
++ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits
to the Form S-4 File no. 33-63747.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to Items 2 and
13, the answers to said Items are based on incomplete information. Such
Items may, however, be considered as correct unless amended by an amendment
to this Form T-1.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, FORMERLY KNOWN AS TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED
THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO AUTHORIZED, ALL IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE
___ DAY OF SEPTEMBER, 1998.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, AS TRUSTEE
By: /S/ Mauri J. Cowen
------------------------
Mauri J. Cowen
Vice President and Trust Officer
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture between Trico Marine
Services, Inc., a Delaware corporation (the "Company"), together with
certain subsidiary guarantors, and Chase Bank of Texas, National
Association, as Trustee, entered into in connection with the issuance of
the Company's 8 1/2 % Senior Notes due 2005, Series G.
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned hereby consents that reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /S/ Mauri J. Cowen
-----------------------
Mauri J. Cowen
Vice President and Trust Officer
TRICO MARINE SERVICES, INC.
LETTER OF TRANSMITTAL
FOR
OFFER TO EXCHANGE
8 1/2 % SENIOR NOTES DUE 2005, SERIES G
FOR ALL OUTSTANDING
8 1/2 % SENIOR NOTES DUE 2005, SERIES A, B, D AND F
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON ________________, 1998, UNLESS EXTENDED BY
TRICO MARINE SERVICES, INC. (THE "EXPIRATION DATE").
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
For Delivery by Mail: For Overnight Delivery Only:
Chase Bank of Texas, Chase Bank of Texas,
National Association National Association
Corporate Trust Services Corporate Trust Services
P. O. Box 2320 1201 Main Street, 18th Floor
Dallas, Texas 75221-2320 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
By Facsimile Transmission (for eligible institutions only):
(214) 672-5746
To Confirm Receipt:
(214) 672-5125
or
(800) 275-2048
(Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand, or by overnight delivery service.)
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
<PAGE>
The undersigned hereby acknowledges receipt and review of the Prospectus
dated ______________, 1998 (the "Prospectus"), of Trico Marine Services, Inc.,
a Delaware corporation (the "Company"), and certain of its subsidiaries (such
subsidiaries referred to herein as the "Guarantors"), and this Letter of
Transmittal (the "Letter of Transmittal"), which together describe the
Company's offer to exchange (the "Exchange Offer") its 8 1/2 % Senior Notes due
2005, Series G (the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), for a like principal
amount of its issued and outstanding 8 1/2 % Senior Notes due 2005, Series A,
B, D and F (the "Old Notes"). Capitalized terms used but not defined herein
have the respective meaning given to them in the Prospectus.
The Company reserves the right, at any time or from time to time, to
extend the Exchange Offer at its discretion, in which event the term
"Expiration Date" shall mean the latest date to which the Exchange Offer is
extended. The Company shall notify the Exchange Agent and each registered
holder of the Old Notes of any extension by oral or written notice prior to
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
This Letter of Transmittal is to be used by a holder of Old Notes if
original Old Notes, if available, are to be forwarded herewith. An Agent's
Message (as defined in the next sentence) is to be used if delivery of Old
Notes is to be made by book-entry transfer to the account maintained by the
Exchange Agent at the Depository Trust Company (the "Book-Entry Transfer
Facility") pursuant to the procedures set forth in the Prospectus under the
caption "The Exchange Offer -- Terms of the Exchange Offer -- Procedures for
Tendering Old Notes." The term "Agent's Message" means a message, transmitted
by the Book-Entry Transfer Facility and received by the Exchange Agent and
forming a part of the confirmation of a book-entry transfer ("Book-Entry
Confirmation"), which states that the Book-Entry Transfer Facility has received
an express acknowledgment from a participant tendering Old Notes which are the
subject of such Book-Entry Confirmation and that such participant has received
and agrees to be bound by the terms of the Letter of Transmittal and that the
Company may enforce such agreement against such participant. Holders of Old
Notes whose Old Notes are not immediately available, or who are unable to
deliver their Old Notes and all other documents required by this Letter of
Transmittal to the Exchange Agent on or prior to the Expiration Date, or who
are unable to complete the procedure for book-entry transfer on a timely basis,
must tender their Old Notes according to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer -- Terms of the
Exchange Offer -- Guaranteed Delivery Procedures." See Instruction 2.
Delivery of documents to the Book-Entry Transfer Facility does not constitute
delivery to the Exchange Agent.
The term "holder" with respect to the Exchange Offer means any person in
whose name Old Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder. The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old Notes must
complete this Letter of Transmittal in its entirety.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE
FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF
THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE
AGENT.
List below the Old Notes to which this Letter of Transmittal relates. If
the space below is inadequate, list the registered numbers and principal amount
on a separate signed schedule and affix the list to this Letter of Transmittal.
DESCRIPTION OF OLD NOTES TENDERED
<TABLE>
<CAPTION>
Name(s) and Address(es) of Registered Owner(s) as (it/they)
appear(s)on the 8 1/2 % Senior Notes due 2005, Series A, B, D or F
<S> <C> <C>
Certificate Numbers Aggregate Principal Principal Amount
of Old Notes* Amount Represented by Old Tendered
Notes
Total Principal **
Amount of Old
Notes Tendered
(If additional space is required, attach a continuation sheet in substantially the above form.)
</TABLE>
* Need not be completed by book-entry holders.
** Unless otherwise indicated, any tendering holder of Old Notes will be
deemed to have tendered the entire aggregate principal amount represented
by such Old Notes. All tenders must be in integral multiples of $1,000.
METHOD OF DELIVERY
<square>Check here if tendered Old Notes are enclosed herewith.
<square>Check here if tendered Old Notes are being delivered by book-entry
transfer made to an account maintained by the Exchange Agent with a
Book-Entry Transfer Facility and complete the following:
Name of Tendering Institution:............................
Account Number:...........................................
Transaction Code Number:..................................
<square>Check here if tendered Old Notes are being delivered pursuant to a
Notice of Guaranteed Delivery and complete the following:
Name(s) of Registered Holder(s):..........................
........................................................
Date of Execution of Notice of Guaranteed Delivery:.......
Window Ticket Number (if available):......................
Name of Eligible Institution that guaranteed delivery:....
........................................................
Account Number (If delivered by book-entry transfer):.....
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
1. The undersigned hereby tenders to the Company the Old Notes described
above pursuant to the Company's offer of $1,000 principal amount of registered
New Notes, in exchange for each $1,000 principal amount of the Old Notes, upon
the terms and subject to the conditions contained in the Prospectus, receipt of
which is hereby acknowledged, and this Letter of Transmittal.
2. The undersigned hereby represents and warrants that it has full
authority to tender, exchange, assign and transfer the Old Notes described
above. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the exchange, assignment and transfer of Old Notes.
3. The undersigned understands that the tender of the Old Notes pursuant
to all of the procedures set forth in the Prospectus will constitute an
agreement between the undersigned and the Company as to the terms and
conditions set forth in the Prospectus.
4. SPECIAL REPRESENTATION FOR HOLDERS OF THE COMPANY'S 8 1/2 % SENIOR
NOTES DUE 2005, SERIES A (THE "SERIES A NOTES"):
(a) The undersigned acknowledge(s) that this Exchange Offer is being made
in reliance upon interpretations contained in no-action letters issued to third
parties by the staff of the Securities and Exchange Commission (the "SEC"),
including Exxon Capital Holdings Corporation, SEC No-Action (available
April 13, 1989), Morgan Stanley & Co. Inc., SEC No-Action Letter (available
June 5, 1991) (the "Morgan Stanley Letter") and Mary Kay Cosmetics, Inc., SEC
No-Action Letter (available June 5, 1991), that the New Notes issued in
exchange for Series A Notes pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by holders thereof (other than a
broker-dealer who purchased the Series A Notes exchanged for such New Notes
directly from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act and any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holders' business and such holders are not
participating in, and have no arrangement with any person to participate in,
the distribution of such New Notes.
(b) The undersigned hereby represents and warrants that:
(i) the New Notes acquired pursuant to the Exchange Offer are
being obtained in the ordinary course of business of the
holder;
(ii)the holder is not engaging in and does not intend to engage in
a distribution of such New Notes;
(iii)the holder does not have an arrangement or understanding with
any person to participate in the distribution of such New
Notes; and
(iv)the holder is not an "affiliate," as such term is defined
under Rule 405 promulgated under the Securities Act, of the
Company.
(c) If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of New Notes. If the undersigned is a broker-dealer that will
receive New Notes for its own account in exchange for Series A Notes that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale
of such New Notes; however, by so acknowledging and delivering a prospectus,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. If the undersigned is a broker-dealer and
Series A Notes held for its own account were not acquired as a result of
market-making or other trading activities, such Series Notes cannot be
exchanged pursuant to the Exchange Offer.
5. Any obligation of the undersigned hereunder shall be binding upon the
successors, assigns, executors, administrators, trustees in bankruptcy and
legal and personal representatives of the undersigned.
6. Unless otherwise indicated herein under "Special Issuance
Instructions," please issue the certificates for the New Notes in the name of
the undersigned.
<TABLE>
<CAPTION>
<S> <C>
SPECIAL ISSUANCE INSTRUCTION SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6) (SEE INSTRUCTIONS 5 AND 6)
To be completed only (i) if Old Notes in a To be completed ONLY if the New Notes are
principal amount not tendered, or New Notes issued to be issued or sent to someone other than the
in exchange for Old Notes accepted for exchange, are undersigned or to the undersigned at an address
to be issued in the name of someone other than the other than as indicated above.
undersigned, or (ii) if Old Notes tendered by book-
entry transfer which are not exchanged are to be <square> Mail <square> Issue (check appropriate boxes)
returned by credit to an account maintained at the certificates to:
Book-Entry Transfer Facility. Issue New Notes
and/or Old Notes to: Name......................................................
(Type or Print)
Name................................................
(Type or Print) Address...................................................
Address............................................. ..........................................................
.................................................... (Zip Code)
(Zip Code)
.................................................... ..........................................................
(Tax Identification or Social Security Number) (Tax Identification or Social Security Number)
(Complete Substitute Form W-9)
Credit unexchanged Old Notes delivered by book-entry
transfer to the Book-Entry Transfer Facility set
forth below:
Book-Entry Transfer Facility Account Number:
</TABLE>
SPECIAL BROKER-DEALER INSTRUCTIONS
<square> Check here if you are a broker-dealer and wish to receive 10
additional copies of the Prospectus and 10 copies of any
amendments or supplements thereto.
Name ...........................................................
Address ...........................................................
...........................................................
(Zip Code)
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 on Last Page)
........................................................
........................................................
(Signature(s) of Registered Holders of Old Notes)
Dated .........................................., 1997
(The above lines must be signed by the registered holder(s) of Old Notes as
name(s) appear(s) on the Old Notes or on a security position listing, or by
person(s) authorized to become registered holder(s) by a properly completed
bond power from the registered holder(s), a copy of which must be transmitted
with this Letter of Transmittal. If Old Notes to which this Letter of
Transmittal relate are held of record by two or more joint holders, then all
such holders must sign this Letter of Transmittal. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
then such person must(i) set forth his or her full title below and (ii)
unless waived by the Company, submit evidence satisfactory to the Company of
such person's authority so to act. See Instruction 5 regarding completion of
this Letter of Transmittal, printed below.)
Name(s) .....................................................................
(Please Type or Print)
Capacity: .....................................................................
Address: .....................................................................
.....................................................................
(Include Zip Code)
Area Code and Telephone Number: ...............................................
MEDALLION SIGNATURE GUARANTEE
(If Required by Instruction 5)
Certain signatures must be Guaranteed by an Eligible Institution.
Signature(s) Guaranteed by an Eligible Institution:..........................
(Authorized Signature)
.............................................................................
(Title)
.............................................................................
(Name of Firm)
.............................................................................
(Address, Include Zip Code)
.............................................................................
(Area Code and Telephone Number)
Dated:................................................................, 1997
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Old Notes or Book-Entry
Confirmations.
All physically delivered Old Notes or any confirmation of a book-entry
transfer to the Exchange Agent's account at the Book-Entry Transfer Facility of
Old Notes tendered by book-entry transfer (a "Book-Entry Confirmation"), as
well as a properly completed and duly executed copy of this Letter of
Transmittal or Agent's Message or facsimile hereof, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein prior to 5:00 p.m., New York City time, on the
Expiration Date. The method of delivery of the tendered Old Notes, this Letter
of Transmittal and all other required documents to the Exchange Agent is at the
election and risk of the holder and, except as otherwise provided below, the
delivery will be deemed made only when actually received or confirmed by the
Exchange Agent. If such delivery is by mail, it is recommended that registered
mail, properly insured, with return receipt requested, be used. Instead of
delivery by mail, it is recommended that the holder use an overnight or hand
delivery service. In all cases, sufficient time should be allowed to assure
delivery to the Exchange Agent before the Expiration Date. No Letter of
Transmittal or Old Notes should be sent to the Company.
2. Guaranteed Delivery Procedures.
Holders who wish to tender their Old Notes and whose Old Notes are not
immediately available or who cannot deliver their Old Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date, or who cannot complete the procedure for book-entry
transfer on a timely basis and deliver an Agent's Message, must tender their
Old Notes according to the guaranteed delivery procedures set forth in the
Prospectus. Pursuant to such procedures a tender may be effected if the
Exchange Agent has received at its office, on or prior to the Expiration Date,
a letter, telegram or facsimile transmission from an Eligible Institution
setting forth the name and address of the tendering holder, the name(s) in
which the Old Notes are registered and the certificate number(s) of the Old
Notes to be tendered, and stating that the tender is being made thereby and
guaranteeing that, within three Nasdaq National Market trading days after the
date of execution of such letter, telegram or facsimile transmission by the
Eligible Institution, such Old Notes, in proper form for transfer (or a
confirmation of book-entry transfer of such Old Notes into the Exchange Agent's
account at DTC), will be delivered by such Eligible Institution together with a
properly completed and duly executed Letter of Transmittal (and any other
required documents). Unless Old Notes being tendered by the above-described
method are deposited with the Exchange Agent within the time period set forth
above (accompanied or preceded by a properly completed Letter of Transmittal
and any other required documents), the Company may, at its option, reject the
tender.
Any holder of Old Notes who wishes to tender Old Notes pursuant to the
guaranteed delivery procedures described above must ensure that the Exchange
Agent receives the Notice of Guaranteed Delivery prior to 5:00 p.m., New York
City time, on the Expiration Date. Upon request of the Exchange Agent, a
Notice of Guaranteed Delivery will be sent to holders who wish to tender their
Old Notes according to the guaranteed delivery procedures set forth above. See
"The Exchange Offer -- Terms of the Exchange Offer -- Guaranteed Delivery
Procedures" section of the Prospectus.
3. Tender by Holder.
Only a holder of Old Notes may tender such Old Notes in the Exchange
Offer. Any beneficial holder of Old Notes who is not the registered holder and
who wishes to tender should arrange with the registered holder to execute and
deliver this Letter of Transmittal on his behalf or must, prior to completing
and executing this Letter of Transmittal and delivering his Old Notes, either
make appropriate arrangements to register ownership of the Old Notes in such
holder's name or obtain a properly completed bond power from the registered
holder.
4. Partial Tenders.
Tenders of Old Notes will be accepted only in integral multiples of
$1,000. If less than the entire principal amount of any Old Notes is tendered,
the tendering holder should fill in the principal amount tendered in the third
column of the box entitled "Description of Old Notes Tendered" above. The
entire principal amount of Old Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated. If the entire
principal amount of all Old Notes is not tendered, then Old Notes for the
principal amount of Old Notes not tendered and New Notes issued in exchange for
any Old Notes accepted will be sent to the holder at his or her registered
address, unless a different address is provided in the appropriate box on this
Letter of Transmittal, promptly after the Old Notes are accepted for exchange.
5. Signatures on this Letter of Transmittal; Bond Powers and Endorsements;
Guarantee of Signatures.
If this Letter of Transmittal (or facsimile hereof) is signed by the
record holder(s) of the Old Notes tendered hereby, the signature must
correspond with the name(s) as written on the face of the Old Notes without
alteration, enlargement or any change whatsoever. If this Letter of
Transmittal (or facsimile hereof) is signed by a participant in the Book-Entry
Transfer Facility, the signature must correspond with the name as it appears on
the security position listing as the holder of the Old Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered holder or holders of Old Notes listed and tendered hereby and the
New Notes issued in exchange therefor are to be issued (or any untendered
principal amount of Old Notes is to be reissued) to the registered holder, the
said holder need not and should not endorse any tendered Old Notes, nor provide
a separate bond power. In any other case, such holder must either properly
endorse the Old Notes tendered or transmit a properly completed separate bond
power with this Letter of Transmittal, with the signatures on the endorsement
or bond power guaranteed by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered holder or holders of any Old Notes listed, such Old
Notes must be endorsed or accompanied by appropriate bond powers, in each case
signed as the name of the registered holder or holders appears on the Old
Notes.
If this Letter of Transmittal (or facsimile hereof) or any Old Notes or
bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and,
unless waived by the Company, evidence satisfactory to the Company of their
authority to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by this
Instruction 5 must be guaranteed by an Eligible Institution.
No signature guarantee is required if (i) this Letter of Transmittal (or
facsimile hereof) is signed by the registered holder(s) of the Old Notes
tendered herein (or by a participant in the Book-Entry Transfer Facility whose
name appears on a security position listing as the owner of the tendered Old
Notes) and the New Notes are to be issued directly to such registered holder(s)
(or, if signed by a participant in the Book-Entry Transfer Facility, deposited
to such participant's account at such Book-Entry Transfer Facility) and neither
the box entitled "Special Delivery Instructions" nor the box entitled "Special
Issuance Instructions" has been completed, or (ii) such Old Notes are tendered
for the account of an Eligible Institution. In all other cases, all signatures
on this Letter of Transmittal (or facsimile hereof) must be guaranteed by an
Eligible Institution.
6. Special Issuance and Delivery Instructions.
Tendering holders should indicate, in the applicable box or boxes, the
name and address (or account at the Book-Entry Transfer Facility) to which New
Notes or substitute Old Notes for principal amounts not tendered or not
accepted for exchange are to be issued or sent, if different from the name and
address of the person signing this Letter of Transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
7. Tax Identification Number.
Federal income tax law requires that a holder of any Old Notes which are
accepted for exchange must provide the Company (as payor) with its correct
taxpayer identification number ("TIN"), which, in the case of a holder who is
an individual is his or her social security number. If the Company is not
provided with the correct TIN, the holder may be subject to a $50 penalty
imposed by Internal Revenue Service. (If withholding results in an over-payment
of taxes, a refund may be obtained.) Certain holders (including, among others,
all corporations and certain foreign individuals) are not subject to these
backup withholding and reporting requirements. See the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
To prevent backup withholding, each tendering holder must provide such
holder's correct TIN by completing the Substitute Form W-9 set forth herein,
certifying that the TIN provided is correct (or that such holder is awaiting a
TIN), and that (i) the holder has not been notified by the Internal Revenue
Service that such holder is subject to backup withholding as a result of
failure to report all interest or dividends or (ii) the Internal Revenue
Service has notified the holder that such holder is no longer subject to backup
withholding. If the Old Notes are registered in more than one name or are not
in the name of the actual owner, see the enclosed "Guidelines for Certification
of Taxpayer Identification Number of Substitute Form W-9" for information on
which TIN to report.
The Company reserves the right in its sole discretion to take whatever
steps are necessary to comply with the Company's obligations regarding backup
withholding.
8. Validity of Tenders.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and withdrawal of tendered Old Notes will be determined
by the Company, in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any or all tenders
not in proper form or the acceptance for exchange of which may, in the opinion
of counsel for the Company, be unlawful. The Company also reserves the
absolute right to waive any of the conditions of the Exchange Offer or any
defect or irregularity in the tender of any Old Notes. The Company's
interpretation of the terms and conditions of the Exchange Offer (including the
instructions in the Letter of Transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with
tenders of Old Notes must be cured within such time as the Company shall
determine. Although the Company intends to notify holders of defects or
irregularities with respect to tenders of Old Notes, neither the Company, the
Exchange Agent, nor any other person shall be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give such notification. Tenders of Old Notes will not be deemed
to have been made until such defects or irregularities have been cured or
waived. Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been cured or
waived will be returned by the Exchange Agent to the tendering holders, unless
otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date.
9. Waiver of Conditions.
The Company reserves the absolute right to waive, in whole or part, any
of the conditions to the Exchange Offer set forth in the Prospectus.
10. No Conditional Tender.
No alternative, conditional, irregular or contingent tender of Old Notes
on transmittal of this Letter of Transmittal will be accepted.
11. Mutilated, Lost, Stolen or Destroyed Old Notes.
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated above for further
instructions.
12. Requests for Assistance or Additional Copies.
Requests for assistance or for additional copies of the Prospectus or
this Letter of Transmittal may be directed to the Exchange Agent at the address
or telephone number set forth on the cover page of this Letter of Transmittal.
Holders may also contact their broker, dealer, commercial bank, trust company
or other nominee for assistance concerning the Exchange Offer.
13. Withdrawal.
Tenders may be withdrawn only pursuant to the limited withdrawal rights
set forth in the Prospectus under the caption "The Exchange Offer -- Terms of
the Exchange Offer -- Withdrawal Rights."
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE HEREOF
(TOGETHER WITH THE OLD NOTES DELIVERED BY BOOK-ENTRY TRANSFER OR IN ORIGINAL
HARD COPY FORM) MUST BE RECEIVED BY THE EXCHANGE AGENT, OR THE NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT, PRIOR TO THE
EXPIRATION DATE.
<TABLE>
<CAPTION>
SUBSTITUTE PART 1 - PLEASE PROVIDE YOUR TIN IN THE BOX Social Security Number
AT RIGHT AND CERTIFY BY SIGNING AND DATING OR Employer Identification Number
FORM W-9 BELOW
<S> <C> <C> <C>
DEPARTMENT OF THE TREASURY PART 2 - Certification - Under penalties of perjury, PART 3 -
INTERNAL REVENUE SERVICE I certify that:
(1) The number shown on this form is my correct Awaiting TIN <square>
Taxpayer Identification Number (or I am
waiting for a number to be issued to me)
and
Please complete the
PAYER'S REQUEST FOR TAXPAYER (2) I am not subject to backup withholding Certificate of Awaiting
IDENTIFICATION NUMBER (TIN) either because I have not been notified by Taxpayer Identification
the Internal Revenue Service ("IRS") that I Number below.
am subject to backup withholding as a
result of failure to report all interest or
dividends, or the IRS has notified me that
I am no longer subject to backup
withholding.
</TABLE>
Certificate Instructions - You must cross out item (2) in Part 2 above if you
have been notified by the IRS that you are subject to backup withholding
because of underreporting interest or dividends on your tax return. However,
if after being notified by the IRS that you were subject to backup withholding
you received another notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out item (2).
SIGNATURE....................................DATE................, 1998
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or
delivered an application to receive a taxpayer identification number to
the appropriate Internal Revenue Service Center or Social Security
Administration Office or (b) I intend to mail or deliver an application
in the near future. I understand that if I do not provide a taxpayer
identification number to the payor within 60 days, 31% of all reportable
payments made to me thereafter will be withheld until I provide a number.
.................................................................., 1998
Signature Date
CERTIFICATE FOR FOREIGN RECORD HOLDERS
Under penalties of perjury, I certify that I am not a United States
citizen or resident (or I am signing for a foreign corporation,
partnership, estate or trust).
.............................................................., 1998
Signature Date
TRICO MARINE SERVICES, INC.
NOTICE OF GUARANTEED DELIVERY
OF 8 1/2 % SENIOR NOTES DUE 2005, SERIES A, B, D AND F
As set forth in the Prospectus dated ______________, 1998 (as the same
may be amended or supplemented from time to time, the "Prospectus"), of Trico
Marine Services, Inc. (the "Issuer") and certain of its subsidiaries, under
"The Exchange Offer -- Terms of the Exchange Offer -- Procedures for Tendering
Old Notes" and in the Letter of Transmittal for the Offer to Exchange 8 1/2 %
Senior Notes due 2005, Series G (the "Letter of Transmittal"), this form or one
substantially equivalent hereto must be used to accept the Exchange Offer (as
defined below) of the Issuer if: (i) certificates for the above-referenced
Notes (the "Old Notes") are not immediately available, (ii) time will not
permit all required documents to reach the Exchange Agent (as defined below) on
or prior to the Expiration Date (as defined in the Letter of Transmittal) or
(iii) the procedures for book-entry transfer cannot be completed on or prior to
the Expiration Date. Such form may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or letter to the Exchange Agent.
To: Chase Bank of Texas, National Association (the "Exchange Agent")
For Delivery by Mail: For Overnight Delivery Only:
Chase Bank of Texas, Chase Bank of Texas,
National Association National Association
Corporate Trust Services Corporate Trust Services
P. O. Box 2320 1201 Main Street, 18th Floor
Dallas, Texas 75221-2320 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
By Facsimile Transmission (for eligible institutions only):
(214) 672-5746
To Confirm Receipt:
(214) 672-5125
or
(800) 275-2048
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR NUMBER OTHER THAN THOSE SHOWN
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE VALID DELIVERY.
Ladies and Gentlemen:
The undersigned hereby tenders to the Issuer, upon the terms and
conditions set forth in the Prospectus and the Letter of Transmittal (which
together constitute the "Exchange Offer"), receipt of which are hereby
acknowledged, the principal amount of Old Notes set forth below pursuant to the
guaranteed delivery procedures described in the Prospectus and the Letter of
Transmittal.
The undersigned understands and acknowledges that the Exchange Offer will
expire at 5:00 p.m., New York City time, on ________________, 1998, unless
extended by the Issuer. With respect to the Exchange Offer, "Expiration Date"
means such time and date, or if the Exchange Offer is extended, the latest time
and date to which the Exchange Offer is so extended by the Issuer.
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed
Delivery shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
DESCRIPTION OF OLD NOTES TENDERED
Certificate Number(s)(if known)of Aggregate Principal Amount Principal
Old Notes or Account Number at Represented by Old Notes Amount
the Book-Entry Facility Tendered
________________________________ _________________________ ________
________________________________ _________________________ ________
________________________________ _________________________ ________
________________________________ _________________________Total: ________
Please Sign and Complete
Signature(s):____________________________ Name(s):________________________
_________________________________________ ________________________________
Address:_________________________________ Capacity (full title), if signing
_________________________________________ in a representative capacity:
(Zip Code) _________________________________
Area Code and Telephone Number:
_________________________________________
Taxpayer Identification or Social
Security Number:
Dated:___________________________________ _________________________________
GUARANTEE OF DELIVERY
The undersigned, a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended, hereby guarantees (a) that the above-named person(s) own(s)
the above-described securities tendered hereby within the meaning of Rule 10b-4
under the Securities Exchange Act of 1934, (b) that such tender of the above-
described securities complies with Rule 10b-4, and (c) that delivery to the
Exchange Agent of certificates tendered hereby, in proper form for transfer, or
delivery of such certificates pursuant to the procedure for book-entry
transfer, in either case with delivery of a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) and any other required
documents, is being made within three Nasdaq National Market trading days after
the date of execution of a Notice of Guaranteed Delivery of the above-named
person.
____________________________________
(Name of Firm)
Sign here:__________________________
(Authorized Signature)
Name: ______________________________
(Please type or print)
____________________________________
(Area Code and Telephone Number)
____________________________________
Dated: ________________________, 1998 ____________________________________
Address Zip Code
