EXHIBIT 4.1
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
Series A and Series B
8-1/2% Senior Notes due 2005
INDENTURE
Dated as of July 21, 0000
XXXXX XXXXXXXX BANK
NATIONAL ASSOCIATION
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)........................................... 7.10
(a)(2)........................................... 7.10
(a)(3)........................................... N/A
(a)(4)........................................... N/A
(a)(5)............................................7.10
(b)...............................................7.10
(c)...............................................N/A
311(a)...............................................7.11
(b)...............................................7.11
(c)...............................................N/A
312(a)...............................................2.05
(b)..............................................11.03
(c)..............................................11.03
313(a)...............................................7.06
(b)(1)............................................7.06
(b)(2)...................................... 7.06,7.07
(c)........................................ 7.06,11.02
(d)...............................................7.06
314(a)........................................ 4.03,11.02
(b)................................................N/A
(c)(1)...........................................11.04
(c)(2)...........................................11.04
(c)(3).............................................N/A
(d)................................................N/A
(e)..............................................11.05
(f)................................................N/A
315(a)...............................................7.01
(b)........................................ 7.05,11.02
(c)...............................................7.01
(d)...............................................7.01
(e)...............................................6.11
316(a)(last sentence)................................2.09
(a)(1)(A).........................................6.05
(a)(1)(B).........................................6.04
(a)(2).............................................N/A
(b)...............................................6.07
(c)...............................................2.12
317(a)(1)............................................6.08
(a)(2)............................................6.09
(b)...............................................2.04
318(a)..............................................11.01
(b)................................................N/A
(c)..............................................11.01
N/A means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions............................................. 1
Section 1.02. Other Definitions ......................................16
Section 1.03. Incorporation by Reference of Trust Indenture Act...... 17
Section 1.04. Rules of Construction ..................................17
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating........................................ 17
Section 2.02. Execution and Authentication........................... 19
Section 2.03. Registrar and Paying Agent............................. 20
Section 2.04. Paying Agent to Hold Money in Trust ....................20
Section 2.05. Holder Lists........................................... 21
Section 2.06. Transfer and Exchange ..................................21
Section 2.07. Replacement Notes...................................... 28
Section 2.08. Outstanding Notes.......................................29
Section 2.09. Treasury Notes......................................... 29
Section 2.10. Temporary Notes........................................ 30
Section 2.11. Cancellation........................................... 30
Section 2.12. Defaulted Interest......................................30
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee..................................... 30
Section 3.02. Selection of Notes to Be Redeemed.......................31
Section 3.03. Notice of Redemption ...................................31
Section 3.04. Effect of Notice of Redemption .........................32
Section 3.05. Deposit of Redemption Price ............................32
Section 3.06. Notes Redeemed in Part .................................33
Section 3.07. Optional Redemption.................................... 33
Section 3.08. Mandatory Redemption....................................33
Section 3.09. Offer to Purchase by Application of Excess Proceeds.....33
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes....................................... 35
Section 4.02. Maintenance of Office or Agency........................ 36
Section 4.03. Reports................................................ 36
Section 4.04. Compliance Certificate................................. 36
Section 4.05. Taxes.................................................. 37
Section 4.06. Stay, Extension and Usury Laws......................... 37
Section 4.07. Restricted Payments.................................... 38
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries........................... 40
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.................................. 40
Section 4.10. Asset Sales............................................ 42
Section 4.11. Transactions with Affiliates .......................... 43
Section 4.12. Liens.................................................. 44
Section 4.13. Additional Subsidiary Guarantees....................... 44
Section 4.14. Corporate Existence.................................... 44
Section 4.15. Offer to Repurchase Upon Change of Control............. 44
Section 4.16. Issuances and Sales of Capital Stock of Wholly
Owned Restricted Subsidiaries.................... 46
Section 4.17. Sale-and-leaseback Transactions........................ 46
Section 4.18. No Inducements......................................... 46
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets................47
Section 5.02. Successor Corporation Substituted...................... 47
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default...................................... 48
Section 6.02. Acceleration........................................... 49
Section 6.03. Other Remedies......................................... 50
Section 6.04. Waiver of Past Defaults................................ 50
Section 6.05. Control by Majority.................................... 50
Section 6.06. Limitation on Suits.................................... 51
Section 6.07. Rights of Holders of Notes to Receive Payment.......... 51
Section 6.08. Collection Suit by Trustee............................. 51
Section 6.09. Trustee May File Proofs of Claim....................... 52
Section 6.10. Priorities............................................. 52
Section 6.11. Undertaking for Costs.................................. 53
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee...................................... 53
Section 7.02. Rights of Trustee.......................................54
Section 7.03. Individual Rights of Trustee........................... 55
Section 7.04. Trustee's Disclaimer................................... 55
Section 7.05. Notice of Defaults..................................... 55
Section 7.06. Reports by Trustee to Holders of the Notes............. 55
Section 7.07. Compensation and Indemnity............................. 56
Section 7.08. Replacement of Trustee................................. 56
Section 7.09. Successor Trustee by Merger, etc....................... 57
Section 7.10. Eligibility; Disqualification.......................... 58
Section 7.11. Preferential Collection of Claims Against
Company.......................................... 58
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance........................................58
Section 8.02. Legal Defeasance and Discharge......................... 58
Section 8.03. Covenant Defeasance.................................... 59
Section 8.04. Conditions to Legal or Covenant Defeasance............. 59
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions............ 60
Section 8.06. Repayment to Company................................... 61
Section 8.07. Reinstatement.......................................... 61
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.................... 62
Section 9.02. With Consent of Holders of Notes....................... 62
Section 9.03. Compliance with Trust Indenture Act.................... 64
Section 9.04. Revocation and Effect of Consents...................... 64
Section 9.05. Notation on or Exchange of Notes....................... 64
Section 9.06. Trustee to Sign Amendments, etc........................ 64
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Subsidiary Guarantee................................... 65
Section 10.02. Execution and Delivery of Subsidiary
Guarantee........................................ 66
Section 10.03. Guarantors May Consolidate, etc., on
Certain Terms.................................... 66
Section 10.04. Releases Following Sale of Assets...................... 67
Section 10.05. Releases Following Designation as an
Unrestricted Subsidiary.......................... 67
Section 10.06. Limitation on Guarantor Liability...................... 68
Section 10.07. "Trustee" to Include Paying Agent...................... 68
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls........................... 68
Section 11.02. Notices................................................ 68
Section 11.03. Communication by Holders of Notes with
Other Holders of Notes........................... 70
Section 11.04. Certificate and Opinion as to Conditions
Precedent........................................ 70
Section 11.05. Statements Required in Certificate or
Opinion.......................................... 71
Section 11.06. Rules by Trustee and Agents............................ 71
Section 11.07. No Personal Liability of Directors, Officers, Employees
and Stockholders................................. 71
Section 11.08. Governing Law.......................................... 72
Section 11.09. No Adverse Interpretation of Other
Agreements....................................... 72
Section 11.10. Successors............................................. 72
Section 11.11. Severability........................................... 72
Section 11.12. Counterpart Originals.................................. 72
Section 11.13. Table of Contents, Headings, etc....................... 72
EXHIBITS
EXHIBIT A-1 Form of Note ......................................... X-0-0
XXXXXXX X-0 Form Regulation S Temporary Global Note............... X-0-0
XXXXXXX X-0 Certificate of Transferor from 144A Global Note to
Regulation S Global Note...................... X-0-0
XXXXXXX X-0 Certificate of Transferor from Regulation S Global
Note to 144A Global Note...................... X-0-0
XXXXXXX X-0 Certificate of Transferor of Definitive Notes......... X-0-0
XXXXXXX X-0 Certificate of Transferor from Global Note to
Definitive Note.............................. B-4-1
EXHIBIT C Certificate of Institutional Accredited Investor... C-1
EXHIBIT D Form of Subsidiary Guarantee............................ D-1
EXHIBIT E Form of Supplemental Indenture.......................... E-1
This Indenture, dated as of July 21, 1997 is among Trico
Marine Services, Inc., a Delaware corporation (the "Company"),
the guarantors listed on the signature page hereto (each, a
"Guarantor" and, collectively, the "Guarantors") and Texas
Commerce Bank National Association, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 8-1/2% Series A Senior
Notes due 2005 (the "Series A Notes") and the 8-1/2% Series B
Senior Notes due 2005 (the "Series B Notes" and, together with
the Series A Notes, the "Notes"), without preference of one
series of Notes over the other:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01.Definitions.
"144A Global Note" means a permanent global senior note
that contains the paragraph referred to in footnote 1 and the
additional schedule referred to in footnote 3 to the form of
the Note attached hereto as Exhibit A-1, and that is deposited
with the Note Custodian and registered in the name of the
Depository or its nominee, representing a series of Notes sold
in reliance on Rule 144A or another exemption from the
registration requirements of the Securities Act, other than
Regulation S.
"Affiliate" of any specified Person means an "affiliate"
of such Person, as such term is defined for purposes of Rule
144 under the Securities Act.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any
transfer or exchange of beneficial interests in a Global Note,
the rules and procedures of the Depository that apply to such
transfer and exchange.
"Asset Sale" means (a) the sale, lease, conveyance or
other disposition (a "disposition") of any assets or rights
(including, without limitation, by way of a sale and
leaseback), excluding dispositions in the ordinary course of
business (provided that the disposition of all or substantially
all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by Sections 4.15
and/or 5.01 of this Indenture and not by the provisions of
Section 4.10 hereof), (b) the issue or sale by the Company or
any of its Restricted Subsidiaries of Equity Interests of any
of the Company's Subsidiaries, and (c) any Event of Loss,
whether in the case of clause (a), (b) or (c), in a single
transaction or a series of related transactions, provided that
such transaction or series of transactions (i) has a fair
market value in excess of $1.0 million or (ii) results in the
payment of net proceeds in excess of $1.0 million.
Notwithstanding the foregoing, the following transactions will
be deemed not to be Asset Sales: (A) a disposition of obsolete
or excess equipment or other assets; (B) a disposition of
assets by the Company to a Wholly Owned Restricted Subsidiary
or by a Wholly Owned Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary; (C) a disposition
of Equity Interests by a Wholly Owned Restricted Subsidiary to
the Company or to another Wholly Owned Restricted Subsidiary;
(D) a Permitted Investment or Restricted Payment that is
permitted by this Indenture; (E) a disposition of assets by the
Company or any of its Restricted Subsidiaries to a Person that
is an Affiliate of the Company or such Restricted Subsidiary
and is engaged in the business of providing marine support
vessels and related services to the oil and gas industry (or a
business that is reasonably complementary or related thereto as
determined in good faith by the Board of Directors), which
Person is an Affiliate solely because the Company or such
Restricted Subsidiary has an Investment in such Person,
provided that such transaction complies with Section 4.11
hereof; (F) any charter or lease of any equipment or other
assets entered into in the ordinary course of business and with
respect to which the Company or any Restricted Subsidiary
thereof is the lessor, except any such charter or lease that
provides for the acquisition of such assets by the lessee
during or at the end of the term thereof for an amount that is
less than the fair market value thereof at the time the right
to acquire such assets occurs; and (G) any trade or exchange by
the Company or any Restricted Subsidiary of equipment or other
assets for equipment or other assets owned or held by another
Person, provided that the fair market value of the assets
traded or exchanged by the Company or such Restricted
Subsidiary (together with any cash or Cash Equivalents) is
reasonably equivalent to the fair market value of the assets
(together with any cash or Cash Equivalents) to be received by
the Company or such Restricted Subsidiary. The fair market
value of any non-cash proceeds of a disposition of assets and
of any assets referred to in the foregoing clause (G) of this
definition shall be determined in the manner contemplated in
the definition of the term "fair market value," the results of
which determination shall be set forth in an Officers'
Certificate delivered to the Trustee.
"Attributable Indebtedness" in respect of a sale-and-
leaseback transaction means, at the time of determination, the
present value (discounted at the rate of interest implicit in
such transaction, determined in accordance with GAAP) of the
obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale-and-lease-
back transaction (including any period for which such lease has
been extended or may, at the option of the lessor, be
extended). As used in the preceding sentence, the "net rental
payments" under any lease for any such period shall mean the
sum of rental and other payments required to be paid with
respect to such period by the lessee thereunder, excluding any
amounts required to be paid by such lessee on account of
maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges. In the case of any lease that is
terminable by the lessee upon payment of penalty, such net
rental payment shall also include the amount of such penalty,
but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so
terminated.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx 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
Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating
Service and in each case maturing within 270 days after the
date of acquisition, (f) deposits available for withdrawal on
demand with any commercial bank not meeting the qualifications
specified in clause (c) above, provided all such deposits do
not exceed $2.0 million in the aggregate at any one time, and
(g) money market mutual funds substantially all of the assets
of which are of the type described in the foregoing clauses
(a) through (e).
"Cedel" means Cedel bank, societe anonyme.
"Change of Control" means the occurrence of any of the
following: (a) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or
substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, (b) the adoption of a plan
relating to the liquidation or dissolution of the Company, (c)
the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act), directly or indirectly through one or more
intermediaries, of more than 50% of the voting power of the
outstanding voting stock of the Company or (d) the first day on
which more than a majority of the members of the Board of
Directors are not Continuing Directors; provided, however, that
a transaction in which the Company becomes a Subsidiary of
another Person (other than a Person that is an individual)
shall not constitute a Change of Control if (i) the
stockholders of the Company immediately prior to such
transaction "beneficially own" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, at least a
majority of the voting power of the outstanding voting stock of
the Company immediately following the consummation of such
transaction and (ii) immediately following the consummation of
such transaction, no "person" (as such term is defined above),
other than such other Person (but including the holders of the
Equity Interests of such other Person), "beneficially owns" (as
such term is defined above), directly or indirectly through one
or more intermediaries, more than 50% of the voting power of
the outstanding voting stock of the Company. For purposes of
this definition, a time charter of vessels to customers in the
ordinary course of business shall not be deemed to be a "lease"
under clause (a) above.
"Common Stock" means the common stock of the Company, par
value $0.01 per share.
"Consolidated Cash Flow" means, with respect to any Person
for any period, the Consolidated Net Income of such Person for
such period plus, to the extent deducted or excluded in
calculating Consolidated Net Income for such period, (a) an
amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale, (b) provision for
taxes based on income or profits of such Person and its
Restricted Subsidiaries, (c) Consolidated Interest Expense of
such Person and its Restricted Subsidiaries, and (d)
depreciation and amortization (including amortization of
goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) of such
Person and its Restricted Subsidiaries, in each case, on a
consolidated basis and determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means with respect
to any Person for any period, the ratio of the Consolidated
Cash Flow of such Person for such period to the Consolidated
Interest Expense of such Person for such period; provided,
however, that the Consolidated Interest Coverage Ratio shall be
calculated giving pro forma effect to each of the following
transactions as if each such transaction had occurred at the
beginning of the applicable four-quarter reference period:
(a) any incurrence, assumption, guarantee or redemption by the
Company or any of its Restricted Subsidiaries of any
Indebtedness (other than revolving credit borrowings)
subsequent to the commencement of the period for which the
Consolidated Interest Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation
of the Consolidated Interest Coverage Ratio is made (the
"Calculation Date"); (b) any acquisition that has been made by
the Company or any of its Restricted Subsidiaries, or approved
and expected to be consummated within 30 days of the
Calculation Date, including, in each case, through a merger or
consolidation, and including any related financing
transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Calculation Date (in which case Consolidated Cash Flow for such
reference period shall be calculated without giving effect to
clause (c) of the proviso set forth in the definition of
Consolidated Net Income); and (c) any other transaction that
may be given pro forma effect in accordance with Article 11 of
Regulation S-X as in effect from time to time; provided,
further, however, that (i) the Consolidated Cash Flow
attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded and (ii) the
Consolidated Interest Expense attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation
Date, shall be excluded, but only to the extent that the
obligations giving rise to such Consolidated Interest Expense
will not be obligations of the referent Person or any of its
Restricted Subsidiaries following the Calculation Date.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum, without duplication, of (a) the
consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings,
and net payments (if any) pursuant to Hedging Obligations but
excluding amortization of debt issuance costs) and (b) the
consolidated interest expense of such Person and its Restricted
Subsidiaries that was capitalized during such period.
"Consolidated Net Income" means, with respect to any
Person for any period, the aggregate of the Net Income of such
Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP,
provided that (a) the Net Income (but not loss) of any Person
that is not a Restricted Subsidiary or that is accounted for by
the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash
to the referent Person or a Wholly Owned Restricted Subsidiary
thereof, (b) the Net Income of any Restricted Subsidiary shall
be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its
stockholders, (c) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded and (d) the
cumulative effect of a change in accounting principles shall be
excluded.
"Consolidated Net Tangible Assets" means, with respect to
any Person as of any date, the sum of the amounts that would
appear on a consolidated balance sheet of such Person and its
consolidated Restricted Subsidiaries as the total assets of
such Person and its consolidated Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP and
after deducting therefrom, (a) to the extent otherwise
included, unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, licenses, organization
or development expenses and other intangible items and (b) the
aggregate amount of liabilities of the Company and its
Restricted Subsidiaries which may be properly classified as
current liabilities (including tax accrued as estimated),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, with respect to any Person
as of any date, the sum of (a) the consolidated equity of the
common stockholders of such Person and its consolidated
Restricted Subsidiaries as of such date plus (b) the respective
amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and
paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock,
less (i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets
of a going concern business made within 12 months after the
acquisition of such business) subsequent to the date of this
Indenture in the book value of any asset owned by such Person
or a consolidated Restricted Subsidiary of such Person, (ii)
all investments as of such date in unconsolidated Subsidiaries
and in Persons that are not Restricted Subsidiaries and (iii)
all unamortized debt discount and expense and unamortized
deferred charges as of such date, in each case determined in
accordance with GAAP.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors who (a) was
a member of the Board of Directors on the date of original
issuance of the Series A Notes or (b) was nominated for
election to the Board of Directors with the approval of, or
whose election to the Board of Directors was ratified by, at
least two-thirds of the Continuing Directors who were members
of the Board of Directors at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof or
such other address as to which the Trustee may give notice to
the Company.
"Credit Facility" means that certain Revolving Credit
Agreement, dated as of July 26, 1996, as amended, by and among
the Company, its Subsidiaries named therein, BankBoston, N.A.,
Hibernia National Bank and First National Bank of Commerce,
including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, in
each case as amended, restated, modified, supplemented,
extended, renewed, replaced, refinanced or restructured from
time to time, whether by the same or any other agent or agents,
lender or group of lenders, whether represented by one or more
agreements and whether one or more Subsidiaries are added or
removed as borrowers or guarantors thereunder or as parties
thereto.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any
Bankruptcy Law.
"Default" means any event that is or with the passage of
time or the giving of notice or both would be an Event of
Default.
"Definitive Notes" means Notes that are in the form of
Exhibit A-1 attached hereto (but without including the text
referred to in footnotes 1 and 3 thereto).
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified
in Section 2.03 hereof as the Depository with respect to the
Notes, until a successor shall have been appointed and become
such pursuant to the applicable provision of this Indenture,
and, thereafter, "Depository" shall mean or include such
successor.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the
happening of any event, matures (excluding any maturity as a
result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is
91 days after the date on which the Notes mature or are
redeemed or retired in full; provided, however, that any
Capital Stock that would constitute Disqualified Stock solely
because the holders thereof (or of any security into which it
is convertible or for which it is exchangeable) have the right
to require the issuer to repurchase such Capital Stock (or such
security into which it is convertible or for which it is
exchangeable) upon the occurrence of any of the events
constituting an Asset Sale or a Change of Control shall not
constitute Disqualified Stock if such Capital Stock (and all
such securities into which it is convertible or for which it is
exchangeable) provides that the issuer thereof will not
repurchase or redeem any such Capital Stock (or any such
security into which it is convertible or for which it is
exchangeable) pursuant to such provisions prior to compliance
by the Company with Section 4.10 or 4.15 of this Indenture, as
the case may be.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable
for, Capital Stock).
"Euroclear" means Xxxxxx Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear system.
"Event of Loss" means, with respect to any property or
asset of the Company or any Restricted Subsidiary, (a) any
damage to such property or asset that results in an insurance
settlement with respect thereto on the basis of a total loss or
a constructive or compromised total loss or (b) the
confiscation, condemnation or requisition of title to such
property or asset by any government or instrumentality or
agency thereof. An Event of Loss shall be deemed to occur as
of the date of the insurance settlement, confiscation,
condemnation or requisition of title, as applicable.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to
exchange Series B Notes for Series A Notes.
"Existing Indebtedness" means Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under
the Credit Facility) in existence on the date of this
Indenture, until such amounts are repaid.
The term "fair market value" means, with respect to any
asset or Investment, the fair market value of such asset or
Investment at the time of the event requiring such
determination, as determined in good faith by the Board of
Directors of the Company, or, with respect to any asset or
Investment in excess of $5.0 million (other than cash or Cash
Equivalents), as determined by a reputable appraisal firm that
is, in the judgment of such Board of Directors, qualified to
perform the task for which such firm has been engaged and
independent with respect to the Company.
"Funded Indebtedness" means any Indebtedness for money
borrowed that by its terms matures at, or is extendible or
renewable at the option of the obligor to, a date more than 12
months after the date of the incurrence of such Indebtedness.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect from time to
time.
"Global Note" means, individually and collectively, the
Regulation S Temporary Global Note, the Regulation S Permanent
Global Note and the 144A Global Note.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
"Guarantor" means (a) each Restricted Subsidiary of the
Company named on the signature page hereto, (b) any other
Restricted Subsidiary of the Company that executes a Subsidiary
Guarantee in accordance with Sections 4.13 and 10.02 hereof and
(c) the respective successors and assigns of such Restricted
Subsidiaries, as required under Article 10 hereof, in each case
until such time as any such Restricted Subsidiary shall be
released and relieved of its obligations pursuant to
Section 10.04 or 10.05 hereof.
"Hedging Obligations" means, with respect to any Person,
the obligations of such Person under (a) interest rate swap
agreements, interest rate cap agreements and interest rate
collar agreements, (b) other agreements or arrangements
designed to protect such Person against fluctuations in
interest rates and (c) any foreign currency futures contract,
option or similar agreement or arrangement designed to protect
such Person against fluctuations in foreign currency rates, in
each case to the extent such obligations are incurred in the
ordinary course of business of such Person.
"Holder" means a Person in whose name a Note is
registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in
respect of borrowed money or evidenced by bonds, debentures,
notes or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the
balance deferred and unpaid of the purchase price of any
property or representing any Hedging Obligations, except any
such balance that constitutes an accrued expense or trade
payable, if and to the extent any of the foregoing indebtedness
(other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP. The amount of any
Indebtedness outstanding as of any date shall be (a) the
accreted value thereof, in the case of any Indebtedness that
does not require current payments of interest, and (b) the
principal amount thereof, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds an
interest through a Participant.
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc.,
Xxxxxxxxx & Company, Inc. and BancBoston Securities Inc.
"Institutional Accredited Investor" means an "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the forms of direct or indirect loans (including
guarantees by the referent Person of, and Liens on any assets
of the referent Person securing, Indebtedness or other
obligations of other Persons), advances or capital
contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course
of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP; provided,
however, that the following shall not constitute Investments:
(i) extensions of trade credit or other advances to customers
on commercially reasonable terms in accordance with normal
trade practices or otherwise in the ordinary course of
business, (ii) Hedging Obligations and (iii) endorsements of
negotiable instruments and documents in the ordinary course of
business. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of
any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the
Company, the Company shall be deemed to have made an Investment
on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07 of this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of Houston, Texas, the
City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the
intervening period.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset, whether or not filed, recorded
or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or
give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction other than a
precautionary financing statement respecting a lease not
intended as a security agreement).
"Liquidated Damages" means all liquidated damages then
owing pursuant to Section 5 of the Registration Rights
Agreement.
"Make-Whole Amount" with respect to a Note means an amount
equal to the excess, if any, of (i) the present value of the
remaining interest, premium and principal payments due on such
Note as if such Note were redeemed on August 1, 2001, computed
using a discount rate equal to the Treasury Rate plus 50 basis
points, over (ii) the outstanding principal amount of such
Note. "Treasury Rate" is defined as the yield to maturity at
the time of the computation of United States Treasury
securities with a constant maturity (as compiled by and
published in the most recent Federal Reserve Statistical
Release H.15(519), which has become publicly available at least
two Business Days prior to the date of the redemption notice
or, if such Statistical Release is no longer published, any
publicly available source of similar market date) most nearly
equal to the then remaining maturity of the Notes assuming
redemption of the Notes on August 1, 2001; provided, however,
that if the Make-Whole Average Life of such Note is not equal
to the constant maturity of the United States Treasury security
for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are
given, except that if the Make-Whole Average Life of such Notes
is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant
maturity of one year shall be used. "Make-Whole Average Life"
means the number of years (calculated to the nearest one-
twelfth) between the date of redemption and August 1, 2001.
"Make-Whole Price" with respect to a Note means the
greater of (i) the sum of the outstanding principal amount and
Make-Whole Amount of such Note, and (ii) the redemption price
of such Note on August 1, 2001, determined pursuant to the
Indenture (104.250% of the principal amount).
"Net Income" means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with
GAAP and before any reduction in respect of preferred stock
dividends, excluding, however, (a) any gain (but not loss),
together with any related provision for taxes on such gain (but
not loss), realized in connection with (i) any Asset Sale
(including, without limitation, dispositions pursuant to sale-
and-leaseback transactions) or (ii) the disposition of any
securities by such Person or any of its Restricted Subsidiaries
or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries and (b) any extraordinary or
nonrecurring gain (but not loss), together with any related
provision for taxes on such extraordinary or nonrecurring gain
(but not loss).
"Net Proceeds" means the aggregate cash proceeds received
by the Company or any of its Restricted Subsidiaries in respect
of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of (without
duplication) (a) the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and
investment banking fees, sales commissions, recording fees,
title transfer fees, title insurance premiums, appraiser fees
and costs incurred in connection with preparing such asset for
sale) and any relocation expenses incurred as a result thereof,
(b) taxes paid or estimated to be payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements), (c) amounts
required to be applied to the repayment of Indebtedness (other
than under the Credit Facility) secured by a Lien on the asset
or assets that were the subject of such Asset Sale and (d) any
reserve established in accordance with GAAP or any amount
placed in escrow, in either case for adjustment in respect of
the sale price of such asset or assets, until such time as such
reserve is reversed or such escrow arrangement is terminated,
in which case Net Proceeds shall include only the amount of the
reserve so reserved or the amount returned to the Company or
its Restricted Subsidiaries from such escrow arrangement, as
the case may be.
"Non-Recourse Debt" means Indebtedness (a) as to which
neither the Company nor any of its Restricted Subsidiaries (i)
provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) or
is otherwise directly or indirectly liable (as a guarantor or
otherwise) or (ii) constitutes the lender, (b) no default with
respect to which (including any rights that the holders thereof
may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both)
the holders of Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity and (c) as to which the
lenders have been notified in writing that they will not have
any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries, except to the extent of any
Indebtedness incurred by the Company or any of its Restricted
Subsidiaries in accordance with clause (a)(i) above.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman
of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of
whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting
officer of the Company, that meets the requirements of Section
11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel
who is reasonably acceptable to the Trustee, that meets the
requirements of Section 11.05 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.
"Pari Passu Indebtedness" means, with respect to any Net
Proceeds from Asset Sales, Indebtedness of the Company and its
Restricted Subsidiaries the terms of which require the Company
or such Restricted Subsidiary to apply such Net Proceeds to
offer to repurchase such Indebtedness.
"Participant" means with respect to DTC, Euroclear or
Cedel, a Person who has an account with DTC, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include
Euroclear and Cedel).
"Permitted Investments" means (a) any Investment in the
Company or in a Wholly Owned Restricted Subsidiary of the
Company, (b) any Investment in Cash Equivalents, (c) any
Investment by the Company or any Restricted Subsidiary of the
Company in a Person if as a result of such Investment (i) such
Person becomes a Wholly Owned Restricted Subsidiary of the
Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys all or
substantially all of its assets to, or is liquidated into, the
Company or a Wholly Owned Restricted Subsidiary of the Company,
(d) any Investment made as a result of the receipt of non-cash
consideration from (i) an Asset Sale that was made pursuant to
and in compliance with Section 4.10 hereof or (ii) a
disposition of assets that does not constitute an Asset Sale,
and (e) Investments in a Person engaged principally in the
business of providing marine support vessels and related
services to the oil and gas industry or businesses reasonably
complementary or related thereto provided that the aggregate
amount of such Investments pursuant to this clause (e) in
Persons that are not Restricted Subsidiaries of the Company
shall not exceed $20.0 million at any one time.
"Permitted Liens" means (a) Liens securing Indebtedness
incurred pursuant to clause (a) of the second paragraph of
Section 4.09 hereof plus additional Indebtedness under the
Credit Facility not to exceed an amount equal to 15% of
Consolidated Net Tangible Assets, (b) Liens in favor of the
Company and its Restricted Subsidiaries, (c) Liens on property
of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of
the Company, provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not
extend to any property other than those of the Person merged
into or consolidated with the Company or any of its Restricted
Subsidiaries, (d) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary
of the Company, provided that such Liens were in existence
prior to the contemplation of such acquisition and do not
extend to any other property, (e) Liens to secure the
performance of statutory obligations, surety or appeal bonds,
bid or performance bonds, insurance obligations or other
obligations of a like nature incurred in the ordinary course of
business, (f) Liens securing Hedging Obligations, (g) Liens
existing on the date of this Indenture, (h) Liens securing Non-
Recourse Debt, (i) any interest or title of a lessor under a
Capital Lease Obligation or an operating lease, (j) Liens
arising by reason of deposits necessary to obtain standby
letters of credit in the ordinary course of business, (k) Liens
on real or personal property or assets of the Company or a
Restricted Subsidiary thereof to secure Indebtedness incurred
for the purpose of (i) financing all or any part of the
purchase price of such property or assets incurred prior to, at
the time of, or within 120 days after, the acquisition of such
property or assets or (ii) financing all or any part of the
cost of construction of any such property or assets, provided
that the amount of any such financing shall not exceed the
amount expended in the acquisition of, or the construction of,
such property or assets and such Liens shall not extend to any
other property or assets of the Company or a Restricted
Subsidiary (other than any associated accounts, contracts and
insurance proceeds), (l) Liens securing Permitted Refinancing
Indebtedness with respect to any Indebtedness referred to in
clause (k) above, and (m) Liens incurred in the ordinary course
of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed
$5.0 million at any one time outstanding and that (1) are not
incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (2) do not in the aggregate
materially detract from the value of the property or materially
impair the use thereof in the operation of business by the
Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any
Indebtedness of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its
Restricted Subsidiaries; provided, however, that (a) the
principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the
principal amount of (or accreted value, if applicable), plus
premium, if any, and accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection
therewith), (b) such Permitted Refinancing Indebtedness has a
final maturity date no earlier than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded, (c) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in
right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes
on terms at least as favorable, taken as a whole, to the
Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded and (d) such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; provided,
however, that a Restricted Subsidiary may guarantee Permitted
Refinancing Indebtedness incurred by the Company, whether or
not such Restricted Subsidiary was an obligor or guarantor of
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; provided, further, however, that if such
Permitted Refinancing Indebtedness is subordinated to the
Notes, such guarantee shall be subordinated to such Restricted
Subsidiary's Subsidiary Guarantee to at least the same extent.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-
stock company, trust, unincorporated organization or government
or agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision
or business).
"Productive Assets" means vessels or other assets (other
than assets that would be classified as current assets in
accordance with GAAP) of the kind used or usable by the Company
or its Restricted Subsidiaries in the business of providing
marine support vessels and related services to the oil and gas
industry (or any business that is reasonably complementary or
related thereto as determined in good faith by the Board of
Directors).
"QIB" means a "qualified institutional buyer" as defined
in Rule 144A under the Securities Act.
"Qualified Equity Offering" means (a) any sale of Equity
Interests (other than Disqualified Stock) of the Company
pursuant to an underwritten offering registered under the
Securities Act or (b) any sale of Equity Interests (other than
Disqualified Stock) of the Company so long as, at the time of
consummation of such sale, the Company has a class of common
equity securities registered pursuant to Section 12(b) or
Section 12(g) under the Exchange Act.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of July 21, 1997, by and among the
Company, the Guarantors and the Initial Purchasers, as such
agreement may be amended, modified or supplemented from time to
time.
"Regulation S" means Regulation S under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as
appropriate.
"Regulation S Permanent Global Note" means a permanent
global note that contains the paragraph referred to in
footnote 1 and the additional schedule referred to in
footnote 3 to the form of the Note attached hereto as
Exhibit A-1, and that is deposited with the Note Custodian and
registered in the name of the Depository, representing a series
of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single
temporary global senior note in the form of the Note attached
hereto as Exhibit A-2 that is deposited with the Note Custodian
and registered in the name of the Depository, representing a
series of Notes sold in reliance on Regulation S.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust
Department of the Trustee (or any successor department of the
Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial
interest of a Participant or Indirect Participant in a
Restricted Global Note.
"Restricted Definitive Notes" means the Definitive Notes
that is required to bear the legend set forth in Section
2.06(f) hereof.
"Restricted Global Notes" means the 144A Global Note and
the Regulation S Global Note, each of which is required to bear
the legend set forth in Section 2.06(f) hereof.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary
of such Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the
Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Significant Subsidiary" means (a) any Restricted
Subsidiary of the Company that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture, (b)
any other Restricted Subsidiary of the Company that provides a
guarantee under the Credit Facility or incurs any Funded
Indebtedness and (c) their respective successors and assigns.
"Stated Maturity" means, with respect to any installment
of interest or principal on any series of Indebtedness, the
date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing
such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the
payment thereof.
"Subsidiary" means, with respect to any Person, (a) any
corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof) and (b)
any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such
Person or (ii) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any
combination thereof).
"Subsidiary Guarantees" means the joint and several
guarantees of the Company's payment obligations under the Notes
issued by all of the Guarantors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which
this Indenture is qualified under the TIA.
"Transfer Restricted Securities" means securities that
bear or are required to bear the legend set forth in Section
2.06(f) hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"Unrestricted Global Notes" means one or more Global Notes
that do not and are not required to bear the legend set forth
in Section 2.06(f) hereof.
"Unrestricted Subsidiary" means any Subsidiary that is
designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors,
but only to the extent that such Subsidiary at the time of such
designation (a) has no Indebtedness other than Non-Recourse
Debt, (b) is not party to any agreement, contract, arrangement
or understanding with the Company or any Restricted Subsidiary
of the Company unless such agreement, contract, arrangement or
understanding does not violate the terms of this Indenture
described in Section 4.11 hereof, and (c) is a Person with
respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Equity Interests or (ii) to maintain
or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results, in
each case, except to the extent otherwise permitted by this
Indenture. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any
time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes
of this Indenture and any Indebtedness of such Subsidiary shall
be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not
permitted to be incurred as of such date pursuant to Section
4.09 hereof, the Company shall be in default of such covenant).
The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary,
provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (A)
such Indebtedness is permitted by Section 4.09 hereof,
calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period,
and (B) no Default or Event of Default would be in existence
following such designation.
"Weighted Average Life to Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by
dividing (a) the sum of the products obtained by multiplying
(i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by
(ii) the number of years (calculated to the nearest one-
twelfth) that will elapse between such date and the making of
such payment, by (b) the then outstanding principal amount of
such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person to the extent (a) all of
the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the
time be owned directly or indirectly by such Person or (b) such
Restricted Subsidiary is organized in a foreign jurisdiction
and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of
such foreign jurisdiction or individual or corporate citizens
of such foreign jurisdiction in order for such Restricted
Subsidiary to transact business in such foreign jurisdiction,
provided that such Person, directly or indirectly, owns the
remaining Capital Stock or ownership interests in such
Restricted Subsidiary and, by contract or otherwise, controls
the management and business of such Restricted Subsidiary and
derives the economic benefits of ownership of such Restricted
Subsidiary to substantially the same extent as if such
Restricted Subsidiary were a wholly owned Restricted
Subsidiary.
Section 1.02.Other Definitions.
Defined in
Term Section
---- -----------
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" or "incurrence" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
Section 1.03.Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part
of this Indenture. Any terms incorporated in this Indenture
that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section 1.04.Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act or the Exchange Act shall be deemed to
include substitute, replacement or successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01.Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 or Exhibit
A-2 hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.
Each Note shall be dated the date of its authentication. The
Notes shall be issued in denominations of $1,000 and integral
multiples thereof.
The Series A Notes and the Series B Notes shall be
considered collectively to be a single class for all purposes
of this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
(a) Global Notes. Except as provided in Section 2.01(c),
notes offered and sold in connection with the Offering by the
Initial Purchasers to QIBs in reliance on Rule 144A shall be
issued initially in the form of one or more 144A Global Notes,
which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, as custodian of the
Depository, and registered in the name of the Depository or a
nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the 144A Global Notes may from
time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depository or its nominee as
hereinafter provided.
Notes offered and sold in connection with the Offering by
the Initial Purchasers in reliance on Regulation S, if any,
shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the
Trustee, as custodian for the Depository, and registered in the
name of the Depository or the nominee of the Depository for the
accounts of designated agents holding on behalf of Euroclear or
Cedel, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The "40-day restricted
period" (as defined in Regulation S) shall be terminated upon
the receipt by the Trustee of (i) a written certificate from
the Depository, together with copies of certificates from
Euroclear and Cedel certifying that they have received
certification of non-United States beneficial ownership of 100%
of the aggregate principal amount of the Regulation S Temporary
Global Note (except to the extent of any beneficial owners
thereof who acquired an interest therein pursuant to another
exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A
Global Note, all as contemplated by Section 2.06(a)(ii)
hereof), and (ii) an Officers' Certificate from the Company.
Following the termination of the 40-day restricted period,
beneficial interests in the Regulation S Temporary Global Note
shall be exchanged for beneficial interests in one or more
Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate
principal amount of the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes may from time to time
be increased or decreased by adjustments made on the records of
the Trustee and the Depository or its nominee, as the case may
be, in connection with transfers of interest as hereinafter
provided.
Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that
it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate
amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect
exchanges, redemptions and transfers of interests. Any
endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section
2.06 hereof.
The provisions of the "Operating Procedures of the
Euroclear System" and "Terms and Conditions Governing Use of
Euroclear" and the "Management Regulations" and "Instructions
to Participants" of Cedel shall be applicable to interests in
the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes, if any, that are held by Participants
through Euroclear or Cedel. The Trustee shall have no
obligation to notify Holders of any such procedures or to
monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global
Notes may be transferred, in whole and not in part, only to
another nominee of the Depository or to a successor of the
Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall
apply only to 144A Global Notes and Regulation S Permanent
Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(b), authenticate and deliver
the Global Notes that (i) shall be registered in the name of
the Depository or the nominee of the Depository and (ii) shall
be delivered by the Trustee to the Depository or pursuant to
the Depository's instructions or held by the Trustee as
custodian for the Depository.
Participants shall have no rights either under this
Indenture with respect to any Global Note held on their behalf
by the Depository or by the Note Custodian as custodian for the
Depository or under such Global Note, and the Depository may be
treated by the Company, the Trustee and any Agent of the
Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent of the Company or the Trustee from giving
effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between
the Depository and its Participants, the operation of customary
practices of such Depository governing the exercise of the
rights of an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes offered and sold in
connection with the Offering by the Initial Purchasers to
Institutional Accredited Investors who are not QIBs otherwise
than in reliance on Regulation S, if any, or to QIBs who elect
to take their Notes in definitive form shall be issued
initially in the form of Definitive Notes, duly executed by the
Company and authenticated by the Trustee as hereinafter
provided.
Section 2.02.Execution and Authentication.
One Officer shall sign the Notes for the Company by manual
or facsimile signature. The Company's seal shall be reproduced
on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. Such signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture. The form of Trustee's certificate of
authentication to be borne by the Notes shall be substantially
as set forth in Exhibit A-1 or Exhibit A-2 hereto.
The Trustee shall authenticate (i) the Series A Notes for
original issue up to the aggregate principal amount stated in
paragraph 4 of the Notes and (ii) the Series B Notes from time
to time for issue only in exchange for a like principal amount
of Series A Notes, in each case upon a written order of the
Company signed by one Officer, which written order shall
specify (i) the amount of Notes to be authenticated,
(ii) whether the Notes are Series A Notes or Series B Notes,
and (iii) the amount of Notes to be issued in global form or
definitive form. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. An authenticating agent
may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company, any
Guarantor or an Affiliate of the Company.
Section 2.03.Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of
any Agent not a party to this Indenture. If the Company fails
to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company shall enter
into an appropriate agency agreement with any Agent not a party
to this Indenture, and such agreement shall incorporate the
TIA's provisions of this Indenture that relate to such Agent.
The Company or any of its Subsidiaries may act as Paying Agent
or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depository with respect to the Global
Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
Section 2.04.Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held
by the Paying Agent for the payment of principal of or premium,
interest or Liquidated Damages, if any, on the Notes, and will
notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If
the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05.Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders and shall otherwise
comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list
in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA Section 312(a).
Section 2.06.Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer
and exchange of Global Notes or beneficial interests therein
shall be effected through the Depository, in accordance with
this Indenture and the procedures of the Depository therefor,
which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities
Act. Beneficial interests in a Global Note may be transferred
to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note in accordance with
the transfer restrictions set forth in the legend in subsection
(f) of this Section 2.06. Transfers of beneficial interests in
the Global Notes to Persons required to take delivery thereof
in the form of an interest in another Global Note shall be
permitted as follows:
(i) 144A Global Note to Regulation S Global Note.
If, at any time, an owner of a beneficial interest in a
144A Global Note deposited with the Depository (or the
Trustee as custodian for the Depository) wishes to
transfer its beneficial interest in such 144A Global Note
to a Person who is required or permitted to take delivery
thereof in the form of an interest in a Regulation S
Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a
Regulation S Global Note as provided in this Section
2.06(a)(i). Upon receipt by the Trustee of (A)
instructions given in accordance with the Applicable
Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in
the Regulation S Global Note in an amount equal to the
beneficial interest in the 144A Global Note to be
transferred, (B) a written order given in accordance with
the Applicable Procedures containing information regarding
the Participant account of the Depository and the
Euroclear or Cedel account to be credited with such
increase, and (C) a certificate in the form of Exhibit B-1
hereto given by the owner of such beneficial interest
stating that the transfer of such interest has been made
in compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with
Rule 903 or Rule 904 of Regulation S, then the Trustee, as
Registrar, shall instruct the Depository to reduce or
cause to be reduced the aggregate principal amount of the
applicable 144A Global Note and to increase or cause to be
increased the aggregate principal amount of the applicable
Regulation S Global Note by the principal amount of the
beneficial interest in the 144A Global Note to be
transferred, to credit or cause to be credited to the
account of the Person specified in such instructions, a
beneficial interest in the Regulation S Global Note equal
to the reduction in the aggregate principal amount of the
144A Global Note, and to debit, or cause to be debited,
from the account of the Person making such transfer the
beneficial interest in the 144A Global Note that is being
transferred.
(ii) Regulation S Global Note to 144A Global Note.
If, at any time, after the expiration of the 40-day
restricted period, an owner of a beneficial interest in a
Regulation S Global Note deposited with the Depository or
with the Trustee as custodian for the Depository wishes to
transfer its beneficial interest in such Regulation S
Global Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a 144A
Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a 144A
Global Note as provided in this Section 2.06(a)(ii). Upon
receipt by the Trustee of (A) instructions from Euroclear
or Cedel, if applicable, and the Depository, directing the
Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be
transferred, such instructions to contain information
regarding the Participant account with the Depository to
be credited with such increase, (B) a written order given
in accordance with the Applicable Procedures containing
information regarding the participant account of the
Depository and (C) a certificate in the form of Exhibit
B-2 attached hereto given by the owner of such beneficial
interest stating (1) if the transfer is pursuant to Rule
144A, that the Person transferring such interest in a
Regulation S Global Note reasonably believes that the
Person acquiring such interest in a 144A Global Note is a
QIB and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A, (2)
that the transfer complies with the requirements of Rule
144 under the Securities Act, (3) if the transfer is to an
Institutional Accredited Investor, that such transfer is
in compliance with the Securities Act and a certificate in
the form of Exhibit C attached hereto and, if such
transfer is in respect of an aggregate principal amount of
less than $100,000, an Opinion of Counsel acceptable to
the Company that such transfer is in compliance with the
Securities Act and any applicable blue sky laws of any
State of the United States, (4) if the transfer is
pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer of
such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the requirements of the
exemption claimed, such statement to be supported by an
Opinion of Counsel from the transferee or the transferor
in form reasonably acceptable to the Company and to the
Registrar and in each case of clause (1), (2), (3) or (4)
above, in accordance with any applicable securities laws
of any state of the United States or any other applicable
jurisdiction or (5) such transfer is being effected
pursuant to an effective registration statement under the
Securities Act, then the Trustee, as Registrar, shall
instruct the Depository to reduce or cause to be reduced
the aggregate principal amount of such Regulation S Global
Note and to increase or cause to be increased the
aggregate principal amount of the applicable 144A Global
Note by the principal amount of the beneficial interest in
the Regulation S Global Note to be transferred, and the
Trustee, as Registrar, shall instruct the Depository,
concurrently with such reduction, to credit or cause to be
credited to the account of the Person specified in such
instructions a beneficial interest in the applicable 144A
Global Note equal to the reduction in the aggregate
principal amount of such Regulation S Global Note and to
debit or cause to be debited from the account of the
Person making such transfer the beneficial interest in the
Regulation S Global Note that is being transferred.
(b) Transfer and Exchange of Definitive Notes. When
Definitive Notes are presented by a Holder to the Registrar
with a request to register the transfer of the Definitive Notes
or to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange
as requested only if the Definitive Notes are presented or
surrendered for registration of transfer or exchange, are
endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Registrar duly executed by such Holder
or by his attorney, duly authorized in writing and the
Registrar received the following documentation (all of which
may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer
Restricted Securities, such request shall be accompanied
by the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Security is
being delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, or such Transfer Restricted Security is
being transferred (1) to the Company or any of its
Subsidiaries or (2) pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto);
(B) if such Transfer Restricted Security is
being transferred to a QIB in accordance with Rule
144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rule
144 under the Securities Act or pursuant to an
effective registration statement under the Securities
Act, a certification to that effect from such Holder
(in substantially the form of Exhibit B-3 hereto);
(C) if such Transfer Restricted Security is
being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect from
such Holder (in substantially the form of Exhibit B-3
hereto but containing the certification called for by
clauses (1) through (4) of Exhibit B-1 hereto); or
(D) if such Transfer Restricted Security is
being transferred to an Institutional Accredited
Investor in reliance on an exemption from the
registration requirements of the Securities Act other
than those listed in subparagraph (B) or (C) above, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto), and a
certification substantially in the form of Exhibit C
hereto from the transferee, and, if such transfer is
in respect of an aggregate principal amount of Notes
of less than $100,000, an Opinion of Counsel
acceptable to the Company that such transfer is in
compliance with the Securities Act and any applicable
blue sky laws of any state of the United States.
(c) Transfer of a Beneficial Interest in a 144A Global
Note or Regulation S Permanent Global Note for a Definitive
Note.
(i) Any Person having a beneficial interest in a 144A
Global Note or Regulation S Permanent Global Note may upon
request, subject to the Applicable Procedures, exchange
such beneficial interest for a Definitive Note, upon
receipt by the Trustee of written instructions or such
other form of instructions as is customary for the
Depository (or Euroclear or Cedel, if applicable), from
the Depository or its nominee on behalf of any Person
having a beneficial interest in a 144A Global Note or
Regulation S Permanent Global Note, and, in the case of a
Transfer Restricted Security, the following additional
information and documents (all of which may be submitted
by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the
Depository as being the beneficial owner or to the
Company or any of its Subsidiaries, a certification
to that effect from such Person (in substantially the
form of Exhibit B-4 hereto);
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A
under the Securities Act or pursuant to an exemption
from registration in accordance with Rule 144 under
the Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit B-4 hereto);
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect from
the transferor (in substantially the form of Exhibit
B-4 hereto but containing the certification called
for by clauses (1) through (4) of Exhibit B-1
hereto); or
(D) if such beneficial interest is being
transferred to an Institutional Accredited Investor,
pursuant to a private placement exemption from the
registration requirements of the Securities Act other
than those listed in subparagraph (B) or (C) above, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-4 hereto) and a
certification from the applicable transferee (in
substantially the form of Exhibit C hereto),
in which case the Trustee or the Note Custodian, at the
direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the
Depository and the Note Custodian, cause the aggregate
principal amount of 144A Global Notes or Regulation S
Permanent Global Notes, as applicable, to be reduced
accordingly and, following such reduction, the Company
shall execute and, the Trustee shall authenticate and
deliver to the transferee a Definitive Note in the
appropriate principal amount.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a 144A Global Note or Regulation S
Permanent Global Note, as applicable, pursuant to this
Section 2.06(c) shall be registered in such names and in
such authorized denominations as the Depository, pursuant
to instructions from its direct or Indirect Participants
or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Following any
such issuance of Definitive Notes, the Trustee, as
Registrar, shall instruct the Depository to reduce or
cause to be reduced the aggregate principal amount of the
applicable Global Note to reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provision of this Indenture
(other than the provisions set forth in subsection (f) of this
Section 2.06), a Global Note may not be transferred as a whole
except by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(e) Authentication of Definitive Notes in Absence of
Depository. If at any time:
(i) the Depository for the Notes notifies the Company
that the Depository is unwilling or unable to continue as
Depository for the Global Notes and a successor Depository
for the Global Notes is not appointed by the Company
within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies
the Trustee in writing that it elects to cause the
issuance of Definitive Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with Section
2.02 hereof, authenticate and deliver, Definitive Notes in an
aggregate principal amount equal to the principal amount of the
Global Notes in exchange for such Global Notes.
(f) Legends.
(i) Except as permitted by the following paragraphs
(ii), (iii) and (iv), each Note certificate evidencing a
Global Note and a Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1) (a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO
A NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE."
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by a Global Note) pursuant to Rule
144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar
shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Note
that does not bear the legend set forth in (i) above
and rescind any restriction on the transfer of such
Transfer Restricted Security upon certification from
the transferring holder substantially in the form of
Exhibit B-3 hereto; and
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the
legend set forth in (i) above, but shall continue to
be subject to the provisions of Section 2.06(a) and
(c) hereof; provided, however, that with respect to
any request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a
Definitive Note that does not bear the legend set
forth in (i) above, which request is made in reliance
upon Rule 144 or pursuant to an effective
registration statement, the Holder thereof shall
certify in writing to the Registrar that such request
is being made pursuant to Rule 144 or pursuant to an
effective registration statement (such certification
to be substantially in the form of Exhibit B-4
hereto).
(iii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by a Global Note) in reliance on any
exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule 144
under the Securities Act) in which the Holder or the
transferee provides an Opinion of Counsel to the Company
and the Registrar in form and substance reasonably
acceptable to the Company and the Registrar (which Opinion
of Counsel shall also state that the transfer restrictions
contained in the legend are no longer applicable):
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar
shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Note
that does not bear the legend set forth in (i) above
and rescind any restriction on the transfer of such
Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the
legend set forth in (i) above, but shall continue to
be subject to the provisions of Section 2.06(a) and
(c) hereof.
(iv) Notwithstanding the foregoing, upon consummation
of the Exchange Offer, the Company shall issue and, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate (A)
one or more Unrestricted Global Notes in aggregate
principal amount equal to the principal amount of the
Restricted Beneficial Interests tendered for acceptance by
Persons that are not (1) broker-dealers, (2) Persons
participating in the distribution of the Series B Notes or
(3) Persons who are Affiliates of the Company and accepted
for exchange in the Exchange Offer and (B) Definitive
Notes that do not bear the legend set forth in this
Section 2.06(f) in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Notes
accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Notes, the Trustee shall cause
the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly and the
Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Definitive Notes in the
appropriate principal amount.
(g) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been
exchanged for Definitive Notes, redeemed, repurchased or
cancelled, all Global Notes shall be returned to or retained
and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such
Global Note, by the Trustee or the Notes Custodian, at the
direction of the Trustee, to reflect such reduction.
(h) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, subject to this Section 2.06, the Company shall
execute and, upon the written order of the Company signed
by two Officers of the Company, the Trustee shall
authenticate Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 4.10, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to register
the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued
upon any registration of transfer or exchange of
Definitive Notes or Global Notes shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Definitive Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The Company and the Registrar shall not be
required:
(A) to issue, to register the transfer of or to
exchange Notes during a period beginning at the
opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day
of selection;
(B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being
redeemed in part;
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding
interest payment date; or
(D) to register the transfer of a Note other
than in amounts of $1,000 or multiple integrals
thereof.
(vi) Prior to due presentment for the registration of
a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any
Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and
interest on such Notes, and neither the Trustee, any Agent
nor the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Definitive Notes
and Global Notes in accordance with the provisions of
Section 2.02 hereof.
Section 2.07.Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Company, or the Trustee receives evidence to its satisfaction
of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon the written order of the
Company signed by two Officers of the Company, shall
authenticate a replacement Note if the Trustee's requirements
are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses
in replacing a Note. If, after the delivery of such
replacement Note, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for
payment or registration such original Note, the Trustee shall
be entitled to recover such replacement Note from the Person to
whom it was delivered or any Person taking therefrom, except a
bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Company, the
Trustee, any Agent and any authenticating agent in connection
therewith.
Subject to the provisions of the final sentence of the
preceding paragraph of this Section 2.07, every replacement
Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08.Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section
as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the
Company, any Subsidiary of the Company or an Affiliate of the
Company or any Subsidiary of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona
fide purchaser.
If the entire principal of and premium, interest and
Liquidated Damages, if any, on any Note are considered paid
under Section 4.01 hereof, it ceases to be outstanding and
interest and Liquidated Damages, if any, on it cease to accrue.
If the Paying Agent (other than the Company, a Subsidiary
of the Company or an Affiliate of any thereof) holds, on a
redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes
shall be deemed to be no longer outstanding and shall cease to
accrue interest and Liquidated Damages, if any.
Section 2.09.Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company, a Subsidiary of
the Company or an Affiliate, shall be considered as though not
outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Trustee knows
are so owned shall be so disregarded. Notwithstanding the
foregoing, Notes that the Company, a Subsidiary of the Company
or an Affiliate offers to purchase or acquires pursuant to an
offer, exchange offer, tender offer or otherwise shall not be
deemed to be owned by the Company, a Subsidiary of the Company
or an Affiliate until legal title to such Notes passes to the
Company, such Subsidiary or such Affiliate as the case may be.
Section 2.10.Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes
upon a written order of the Company signed by two Officers of
the Company. Temporary Notes shall be substantially in the
form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall
be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
Until such exchange, Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
Section 2.11.Cancellation.
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else
shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and,
at the request of the Company, shall destroy cancelled Notes
(subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes
shall be delivered to the Company. The Company may not issue
new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation, other than as
contemplated by the Exchange Offer.
Section 2.12.Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent
special record date, in each case at the rate provided in the
Notes and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment.
The Company shall fix or cause to be fixed each such special
record date and payment date, provided, however, that no such
special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15
days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at
the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the
related payment date and the amount of such interest to be
paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01.Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than
60 days before a redemption date, an Officers' Certificate
setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date,
(iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
Section 3.02.Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any
time, the Trustee shall select the Notes to be redeemed among
the Holders of the Notes, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 days nor more than
60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing
of the Notes selected for redemption and, in the case of any
Note selected for partial redemption, the principal amount
thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000.
Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for
redemption.
The provisions of the two preceding paragraphs of this
Section 3.02 shall not apply with respect to any redemption
affecting only a Global Note, whether such Global Note is to be
redeemed in whole or in part. In case of any such redemption
in part, the unredeemed portion of the principal amount of the
Global Note shall be in an authorized denomination.
Section 3.03.Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least
30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in a principal
amount equal to the unredeemed portion shall be issued
upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Liquidated Damages, if
any, on Notes called for redemption cease to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
If any of the Notes to be redeemed is in the form of a
Global Note, then the Company shall modify such notice to the
extent necessary to accord with the procedures of the
Depository applicable to redemption.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense;
provided, however, that the Company shall have delivered to the
Trustee, at least 45 days (unless the Company and the Trustee
agree to a shorter period) prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04.Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be
conditional.
Section 3.05.Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.04 hereof) money sufficient to pay the
redemption price of and accrued interest and Liquidated
Damages, if any, on all Notes to be redeemed on that date. The
Paying Agent shall promptly return to the Company any money
deposited with the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of and accrued
interest and Liquidated Damages, if any, on all Notes to be
redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest
and Liquidated Damages, if any, shall cease to accrue on the
Notes or the portions of Notes called for redemption. If a
Note is redeemed on or after an interest record date but on or
prior to the related interest payment date, then any accrued
and unpaid interest and Liquidated Damages, if any, shall be
paid to the Person in whose name such Note was registered at
the close of business on such record date. If any Note called
for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest and Liquidated
Damages, if any, not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06.Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note
surrendered.
Section 3.07.Optional Redemption.
(a) Except as set forth in clause (b) of this Section
3.07, the Company shall not have the option to redeem the Notes
pursuant to this Section 3.07 prior to August 1, 2001.
Thereafter, the Company shall have the option to redeem the
Notes, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any,
thereon, to the applicable redemption date, if redeemed during
the twelve-month period beginning onAugust 1 of the years
indicated below:
Year Percentage
---- ----------
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, the Company may at any time prior to August 1,
2001, at its option, redeem the Notes, in whole or in part, at
the Make-Whole Price, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date. In
addition, at any time prior to July 17, 2000, the Company may
redeem up to 35% of the aggregate principal amount of Notes
originally issued at a redemption price of 108.5% of the
principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date,
with the net cash proceeds of one or more Qualified Equity
Offerings, provided that (i) at least $71.5 million in
aggregate principal amount of Notes remains outstanding
immediately after the occurrence of each such redemption and
(ii) each such redemption shall occur within 60 days of the
date of the closing of each such Qualified Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through Section
3.06 hereof.
Section 3.08.Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15 hereof,
the Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
Section 3.09.Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders
to purchase Notes (an "Asset Sale Offer"), it shall follow the
procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except
to the extent that a longer period is required by applicable
law (the "Offer Period"). No later than five Business Days
after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of
Notes required to be purchased pursuant to Section 4.10 hereof
(the "Offer Amount") or, if less than the Offer Amount has been
tendered, all Notes validly tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made
in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any
accrued and unpaid interest and Liquidated Damages, if any,
shall be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to each of the
Holders, with a copy to the Trustee. The notice shall contain
all instructions and materials necessary to enable such Holders
to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant
to this Section 3.09 and Section 4.10 hereof and the
length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for
payment shall continue to accrue interest and Liquidated
Damages, if any;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest and
Liquidated Damages, if any after the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may only elect to have all
of such Note purchased and may not elect to have only a
portion of such Note purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, to the Company or a Paying Agent at the address
specified in the notice at least three days before the
Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company or the Paying Agent, as the case
may be, receives, not later than the expiration of the
Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to
have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the
Trustee shall select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in
denominations of $1,000, or integral multiples thereof,
shall be purchased); and
(i) that Holders whose Notes were purchased only in
part shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
If any of the Notes subject to an Asset Sale Offer is in
the form of a Global Note, then the Company shall modify such
notice to the extent necessary to accord with the procedures of
the Depository applicable to repurchases.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the
Offer Amount has been tendered, all Notes tendered, and shall
deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The
Company or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal
to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee shall authenticate
and mail or deliver such new Note to such Holder, in a
principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on
the Purchase Date.
Other than as specifically provided in this Section 3.09,
any purchase pursuant to this Section 3.09 shall be made
pursuant to the provisions of Section 3.01 through Section 3.06
hereof.
ARTICLE 4
COVENANTS
Section 4.01.Payment of Notes.
The Company shall pay or cause to be paid the principal of
and premium, interest and Liquidated Damages, if any, on the
Notes on the dates and in the manner provided in the Notes.
Principal, premium, interest and Liquidated Damages, if any,
shall be considered paid on the date due if the Paying Agent,
if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. New York time on the due date money deposited by the
Company in immediately available funds and designated for and
sufficient to pay all principal, premium, interest and
Liquidated Damages, if any, then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the interest rate on the Notes
to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest and Liquidated
Damages, if any (without regard to any applicable grace
period), at the same rate to the extent lawful.
Section 4.02.Maintenance of Office or Agency.
The Company shall maintain in the City of New York an
office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in
the City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in
accordance with Section 2.03.
Section 4.03.Reports.
(a) Whether or not the Company is required to do so by
the rules and regulations of the SEC, the Company will file
with the SEC (unless the SEC will not accept such a filing)
and, within 15 days of filing, or attempting to file, the same
with the SEC, furnish to the holders of the Notes (i) all
quarterly and annual financial and other information with
respect to the Company and its Subsidiaries that would be
required to be contained in a filing with the SEC on Forms 10-Q
and 10-K if the Company were required to file such forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's
certified independent accountants, and (ii) all current reports
that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports. The Company
shall at all times comply with TIA Section 314(a).
(b) The Company and the Guarantors shall furnish to the
holders of the Notes, prospective purchasers of the Notes and
securities analysts, upon their request, the information, if
any, required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
Section 4.04.Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the
Company and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has
kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her
knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he
or she may have knowledge and what action the Company is taking
or proposes to take with respect thereto) and that to the best
of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered
pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public
accountants (who shall be a firm of established national
reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to
their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5
hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood
that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of
any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and
what action the Company is taking or proposes to take with
respect thereto.
Section 4.05.Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where
the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section 4.06.Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or
at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07.Restricted Payments.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (i) declare
or pay any dividend or make any other payment or distribution
on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation
involving the Company) or to the direct or indirect holders of
the Company's Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company); (ii) purchase,
redeem or otherwise acquire or retire for value (including
without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of
the Company (other than any such Equity Interests owned by the
Company or any Wholly Owned Restricted Subsidiary of the
Company); (iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for
value, any Indebtedness that is subordinated to the Notes,
except a payment of interest or principal at Stated Maturity;
or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence
thereof;
(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if
such Restricted Payment had been made at the beginning of
the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant
to the Consolidated Interest Coverage Ratio test set forth
in Section 4.09 hereof; and
(c) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by
the Company and its Restricted Subsidiaries after the date
of this Indenture (excluding Restricted Payments permitted
by clauses (b), (c), (d) and (f), but including, without
duplication, Restricted Payments permitted by clauses (a)
and (e), of the next succeeding paragraph), is less than
the sum of (A) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period)
from July 1, 1997 to the end of the Company's most
recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus (B)
100% of the aggregate net cash proceeds received by the
Company from the issue or sale since the date of this
Indenture of Equity Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock or debt
securities of the Company that have been converted into
such Equity Interests (other than any such Equity
Interests, Disqualified Stock or convertible debt
securities sold to a Restricted Subsidiary of the Company
and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified
Stock), plus (C) to the extent that any Restricted
Investment that was made after the date of this Indenture
is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (1) the cash return of capital with
respect to such Restricted Investment (less the cost of
disposition, if any) and (2) the initial amount of such
Restricted Investment, plus (D) in the event that any
Unrestricted Subsidiary is redesignated as a Restricted
Subsidiary, the lesser of (1) an amount equal to the fair
value of the Company's Investments in such Restricted
Subsidiary and (2) the amount of Restricted Investments
previously made by the Company and its Restricted
Subsidiaries in such Unrestricted Subsidiary, plus (E)
$5.0 million.
The foregoing provisions will not prohibit (a) the payment
of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture; (b) the
redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity
Interests of the Company in exchange for, or out of the net
cash proceeds of the substantially concurrent sale (other than
to a Subsidiary of the Company) of, other Equity Interests of
the Company (other than any Disqualified Stock), provided that
the amount of any such net cash proceeds that are utilized for
any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (iii)(B) of the
preceding paragraph; (c) the defeasance, redemption,
repurchase, retirement or other acquisition of subordinated
Indebtedness with the net cash proceeds from an incurrence of,
or in exchange for, Permitted Refinancing Indebtedness; (d) the
payment of any dividend or distribution by a Restricted
Subsidiary of the Company to the to the Company or any Wholly
Owned Restricted Subsidiary; (e) so long as no Default or Event
of Default shall have occurred and be continuing, the
repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company held by any
employee of the Company's or any of its Restricted
Subsidiaries, provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $500,000 in any calendar year; and
(f) the acquisition of Equity Interests of the Company in
connection with the exercise of stock options or stock
appreciation rights by way of cashless exercise or in
connection with the satisfaction of withholding tax
obligations.
The Board of Directors may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and
its Restricted Subsidiaries (except to the extent repaid in
cash) in the Subsidiary so designated shall be deemed to be
Restricted Payments at the time of such designation. All such
outstanding Investments will be deemed to constitute
Investments in an amount equal to the greater of (a) the net
book value of such Investments at the time of such designation
and (b) the fair market value of such Investments at the time
of such designation. Such designation shall only be permitted
if such Restricted Payment would be permitted at such time and
if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, provided that such designation shall be deemed to
be an incurrence of Indebtedness by a Restricted Subsidiary of
the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be
permitted if (a) such Indebtedness is permitted under Section
4.09 hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter
reference period, and (b) no Default or Event of Default would
be in existence following such designation.
Any designation of a Subsidiary as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of a resolution of the Board of
Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
terms of the definition of Unrestricted Subsidiary set forth in
this Indenture and with this Section 4.07.
The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of the Restricted
Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any non-cash Restricted
Payment shall be determined in the manner contemplated by the
definition of the term "fair market value," and the results of
such determination shall be evidenced by an Officers'
Certificate delivered to the Trustee. Not later than the date
of making any Restricted Payment, the Company shall deliver to
the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section 4.07 were
computed.
Section 4.08.Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted
Subsidiary to (a)(i) pay dividends or make any other
distributions to the Company or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or
(ii) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries, (b) make loans or advances to the
Company or any of its Restricted Subsidiaries or (c) transfer
any of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (1) the Credit
Facility or Existing Indebtedness, each as in effect on the
date of this Indenture, (2) this Indenture and the Notes, (3)
applicable law, (4) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the
Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred, (5) by reason of customary non-
assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices, (6)
purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the
nature described in clause (c) above on the property so
acquired, (7) customary provisions in bona fide contracts for
the sale of property or assets or (8) Permitted Refinancing
Indebtedness with respect to any Indebtedness referred to in
clauses (1) and (2) above, provided that the restrictions
contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive,
taken as a whole, than those contained in the agreements
governing the Indebtedness being refinanced.
Section 4.09.Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to
(collectively, "incur" or an "incurrence") any Indebtedness and
that the Company will not issue any Disqualified Stock and will
not permit any of its Restricted Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company
and its Restricted Subsidiaries may incur Indebtedness, and the
Company may issue Disqualified Stock, if the Consolidated
Interest Coverage Ratio for the Company's most recently ended
four full fiscal quarters for which internal financial
statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.25 to
1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the
additional Indebtedness or Disqualified Stock had been issued
or incurred at the beginning of such four-quarter period.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness under the Credit Facility in
an aggregate principal amount at any one time outstanding
not to exceed $65.0 million, plus any fees, premiums,
expenses (including costs of collection), indemnities and
similar amounts payable in connection with such
Indebtedness, and less any amounts repaid permanently in
accordance with Section 4.10;
(b) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(c) the incurrence by the Company and its Restricted
Subsidiaries of Hedging Obligations;
(d) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by the Notes, the
Subsidiary Guarantees and this Indenture;
(e) the incurrence of intercompany Indebtedness
between or among the Company and any of its Wholly Owned
Restricted Subsidiaries, provided that any subsequent
issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than
the Company or a Wholly Owned Restricted Subsidiary of the
Company, or any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a
Wholly Owned Restricted Subsidiary of the Company, shall
be deemed to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case
may be;
(f) Indebtedness in respect of bid, performance or
surety bonds issued for the account of the Company or any
Restricted Subsidiary thereof in the ordinary course of
business, including guarantees or obligations of the
Company or any Restricted Subsidiary thereof with respect
to letters of credit supporting such bid, performance or
surety obligations (in each case other than for an
obligation for money borrowed); and
(g) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing Debt in
exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund
Indebtedness that was permitted by this Indenture to be
incurred (other than pursuant to clause (a) or (e) of this
Section 4.09).
In the event that the incurrence of any Indebtedness would
be permitted by the first paragraph set forth above or one or
more of the provisions set forth in the second paragraph above,
the Company may designate (in the form of an Officers'
Certificate delivered to the Trustee) the particular provision
of this Indenture pursuant to which it is incurring such
Indebtedness.
Section 4.10.Asset Sales.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (a)
the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in accordance
with the definition of such term, the results of which
determination shall be set forth in an Officers' Certificate
delivered to the Trustee) of the assets or Equity Interests
issued or sold or otherwise disposed of and (b) at least 75% of
the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or Cash
Equivalents; provided, however, that the amount of (i) any
liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or such
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes
or any guarantee thereof) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further
liability and (ii) any securities, notes or other obligations
received by the Company or such Restricted Subsidiary from such
transferee that are immediately converted by the Company or
such Restricted Subsidiary into cash (to the extent of the cash
received) shall be deemed to be cash for purposes of this
Section 4.10.
Within 365 days after the receipt of any Net Proceeds from
an Asset Sale, the Company or any such Restricted Subsidiary
may apply such Net Proceeds to (a) permanently repay the
principal of any secured Indebtedness (to the extent of the
fair value of the assets securing such Indebtedness, as
determined by the Board of Directors) or (b) to acquire
(including by way of a purchase of assets or stock, merger,
consolidation or otherwise) Productive Assets. (Any such Net
Proceeds that are applied to the acquisition of Productive
Assets pursuant to any binding agreement to construct any new
marine vessel useful in the business of the Company or any of
its Restricted Subsidiaries shall be deemed to have been
applied for such purpose within such 365-day period so long as
they are so applied within 18 months of the effective date of
such agreement but no later than two years after the date of
receipt of such Net Proceeds.) Pending the final application
of any such Net Proceeds, the Company or any such Restricted
Subsidiary may temporarily reduce outstanding revolving credit
borrowings, including borrowings under the Credit Facility, or
otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture. Any Net Proceeds from Asset Sales
that are not applied or invested as provided in the first
sentence of this paragraph shall be deemed to constitute
"Excess Proceeds." Within 30 days of each date on which the
aggregate amount of Excess Proceeds exceeds $5.0 million, the
Company shall commence a pro rata Asset Sale Offer pursuant to
Section 3.09 hereof to purchase the maximum principal amount of
Notes that may be purchased out of Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, to the date of purchase, in
accordance with the procedures set forth in Section 3.09
hereof; provided, however, that, if the Company is required to
apply such Excess Proceeds to repurchase, or to offer to
repurchase, any Pari Passu Indebtedness, the Company shall only
be required to offer to repurchase the maximum principal amount
of Notes that may be purchased out of the amount of such Excess
Proceeds multiplied by a fraction, the numerator of which is
the aggregate principal amount of Notes outstanding and the
denominator of which is the aggregate principal amount of Notes
outstanding plus the aggregate principal amount of Pari Passu
Indebtedness outstanding. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is
less than the amount that the Company is required to
repurchase, the Company may use any remaining Excess Proceeds
for general corporate purposes. If the aggregate amount of
Notes surrendered by holders thereof exceeds the amount that
the Company is required to repurchase, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that
only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased). Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
Section 4.11.Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties
or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on
terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person or, if there is no such
comparable transaction, on terms that are fair and reasonable
to the Company or such Restricted Subsidiary, and (b) the
Company delivers to the Trustee (i) with respect to any
Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of
$1.0 million, a resolution of the Board of Directors set forth
in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (a) above and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (ii) with
respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, other than any such transactions with a
joint venture engaged in the business of providing marine
support vessels and related services to the oil and gas
industry (or a business that is reasonably complementary or
related thereto as determined in good faith by the Board of
Directors), an opinion as to the fairness to the Company or the
relevant Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or
investment banking firm that is, in the judgment of the Board
of Directors, qualified to render such opinion and is
independent with respect to the Company; provided, however,
that the following shall be deemed not to be Affiliate
Transactions: (A) any employment agreement or other employee
compensation plan or arrangement entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of
business of the Company or such Restricted Subsidiary; (B)
transactions between or among the Company and its Restricted
Subsidiaries; (C) Permitted Investments and Restricted Payments
that are permitted by the provisions of this Indenture; (D)
loans or advances to officers, directors and employees of the
Company or any Restricted Subsidiary made in the ordinary
course of business and consistent with past practices of the
Company and its Restricted Subsidiaries in an aggregate amount
not to exceed $500,000 outstanding at any one time; (E)
indemnities of officers, directors and employees of the Company
or any Restricted Subsidiary permitted by bylaw or statutory
provisions; and (F) the payment of reasonable and customary
regular fees to directors of the Company or any of its
Restricted Subsidiaries who are not employees of the Company or
any Affiliate.
Section 4.12.Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired, or any income or profits therefrom
or assign or convey any right to receive income therefrom,
except Permitted Liens, to secure (a) any Indebtedness of the
Company or such Restricted Subsidiary (if it is not also a
Guarantor), unless prior to, or contemporaneously therewith,
the Notes are equally and ratably secured, or (b) any
Indebtedness of any Guarantor, unless prior to, or
contemporaneously therewith, the Subsidiary Guarantees are
equally and ratably secured; provided, however, that if such
Indebtedness is expressly subordinated to the Notes or the
Subsidiary Guarantees, the Lien securing such Indebtedness will
be subordinated and junior to the Lien securing the Notes or
the Subsidiary Guarantees, as the case may be, with the same
relative priority as such Indebtedness has with respect to the
Notes or the Subsidiary Guarantees.
Section 4.13.Additional Subsidiary Guarantees.
(a) If the Company or any of its Restricted Subsidiaries
shall, after the date of this Indenture, acquire or create
another Significant Subsidiary, or (b) if, after such date, a
Restricted Subsidiary shall provide a guarantee under the
Credit Facility or incur any Funded Indebtedness, then such
newly acquired or created Significant Subsidiary or such
Subsidiary described in clause (b) above shall execute a
Subsidiary Guarantee and deliver an Opinion of Counsel and an
Officers' Certificate in accordance with the terms of Section
10.02 of this Indenture.
Section 4.14.Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, and the corporate,
partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary; provided, however,
that the Company shall not be required to preserve the
existence of any of its Restricted Subsidiaries, if the Board
of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the
Company and its Restricted Subsidiaries, taken as a whole.
Section 4.15.Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the
Company shall make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at an offer price in
cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the date of repurchase (the "Change of Control
Payment"). Within 30 days following a Change of Control, the
Company shall mail a notice to each Holder and the Trustee
stating: (1) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes validly
tendered and not withdrawn will be accepted for payment; (2)
the purchase price and the purchase date, which shall be no
earlier than 30 days but no later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest
and Liquidated Damages, if any; (4) that, unless the Company
defaults in the payment of the Change of Control Payment, all
Notes accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest and Liquidated Damages, if
any, after the Change of Control Payment Date; (5) that Holders
electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to surrender the Notes, properly
endorsed for transfer, together with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Notes
completed and such customary documents as the Company may
reasonably request, to the Paying Agent at the address
specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment
Date; (6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that
such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount
or an integral multiple thereof. If any of the Notes subject
to a Change of Control Offer is in the form of a Global Note,
then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depository
applicable to repurchases. Further, the Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection
with the repurchase of Notes as a result of a Change of
Control.
(b) On or before 10:00 a.m. New York time on the Change
of Control Payment Date, the Company shall, to the extent
lawful, (a) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (b)
deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so
tendered and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to each holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, however, that each such new Note
will be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(c) The Change of Control provisions described above
shall be applicable whether or nor any other provisions of this
Indenture are applicable.
(d) The Company shall not be required to make a Change of
Control Offer following a Change of Control if a third party
makes the Change of Control Offer in the manner, at the time
and otherwise in compliance with the requirements set forth in
this Indenture applicable to a Change of Control Offer made by
the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
Section 4.16.Issuances and Sales of Capital Stock of Wholly
Owned Restricted Subsidiaries.
The Company (i) shall not, and shall not permit any Wholly
Owned Restricted Subsidiary of the Company to, transfer,
convey, sell, or otherwise dispose of any Capital Stock of any
Wholly Owned Restricted Subsidiary of the Company to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary
of the Company), unless (a) such transfer, conveyance, sale, or
other disposition is of all the Capital Stock of such Wholly
Owned Restricted Subsidiary and (b) the Net Proceeds from such
transfer, conveyance, sale, or other disposition are applied in
accordance with Section 4.10 hereof, and (ii) shall not permit
any Wholly Owned Restricted Subsidiary of the Company to issue
any of its Equity Interests to any Person other than to the
Company or a Wholly Owned Restricted Subsidiary of the Company;
except, in the case of both clauses (i) and (ii) above, with
respect to (1) dispositions or issuances by a Wholly Owned
Restricted Subsidiary of the Company as contemplated in clauses
(a) and (b) of the definition of "Wholly Owned Restricted
Subsidiary" or (2) other dispositions or issuances of up to 35%
of the outstanding Capital Stock of a Wholly Owned Restricted
Subsidiary of the Company, provided that, after giving
pro forma effect thereto, the Investment of the Company and its
Wholly Owned Restricted Subsidiaries in all Restricted
Subsidiaries that are not Wholly Owned Restricted Subsidiaries
of the Company, determined on a consolidated basis in
accordance with GAAP, does not exceed 15% of Consolidated Net
Tangible Assets of the Company.
Section 4.17.Sale-and-leaseback Transactions.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale-and-leaseback
transaction; provided, however, that the Company or any
Restricted Subsidiary, as applicable, may enter into a sale-
and-leaseback transaction if (i) the Company or such Restricted
Subsidiary could have (a) incurred Indebtedness in an amount
equal to the Attributable Indebtedness relating to such sale-
and-leaseback transaction pursuant to the Consolidated Interest
Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof and (b) incurred a Lien to secure such Indebtedness
pursuant to Section 4.12 hereof, (ii) the gross cash proceeds
of such sale-and-leaseback transaction are at least equal to
the fair market value (as determined in accordance with the
definition of such term, the results of which determination
shall be set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such sale-and-
leaseback transaction and (iii) the transfer of assets in such
sale-and-leaseback transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with,
Section 4.10 hereof.
Section 0.00.Xx 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 0.00.Xxxxxx of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of
interest on, or Liquidated Damages, if any, with respect
to, the Notes, and such default continues for a period of
30 days;
(b) the Company defaults in the payment when due of
principal of or premium, if any, on the Notes;
(c) the Company fails to comply with any of the
provisions of Section 4.10, 4.15 or 5.01 hereof;
(d) the Company fails to observe or perform any other
covenant or other agreement in this Indenture or the Notes
for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in principal amount of the
Notes then outstanding of such failure;
(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether
such Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default (i) is
caused by a failure to pay principal of or premium or
interest on such Indebtedness prior to the expiration of
any grace period provided in such Indebtedness (a "Payment
Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness,
together with the principal amount of any other such
Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated,
aggregates $5.0 million or more; and provided, further,
that if such default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid,
within a period of 10 days from the continuation of such
default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, an
Event of Default and any consequential acceleration of the
Notes shall be automatically rescinded, so long as such
rescission does not conflict with such judgment or decree;
(f) a final judgment or final judgments for the
payment of money are entered by a court or courts of
competent jurisdiction against the Company or any of its
Restricted Subsidiaries and such judgment or judgments
are not paid or discharged for a period (during which
execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such undischarged
judgments exceeds $5.0 million;
(g) the failure of any Guarantor to perform any
covenant set forth in its Subsidiary Guarantee or the
repudiation by any Guarantor of its obligations under its
Subsidiary Guarantee or the unenforceability of any
Subsidiary Guarantee for any reason;
(h) the Company or any Guarantor pursuant to or
within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for
relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit
of its creditors, or
(v) generally is not paying its debts as they
become due; or
(i) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against the Company or
any Guarantor in an involuntary case;
(ii) appoints a Custodian of the Company or
any Guarantor or for all or substantially all of
the property of the Company or any Guarantor; or
(iii) orders the liquidation of the Company
or any Guarantor;
and the order or decree remains unstayed and in effect for
60 consecutive days.
Section 6.02.Acceleration.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due
and payable immediately. Upon any such declaration, the Notes
shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (h) or
(i) of Section 6.01 hereof occurs with respect to the Company
or any Guarantor, all outstanding Notes shall be due and
payable immediately without further action or notice. The
Holders of a majority in principal amount of the then
outstanding Notes by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest, premium or
Liquidated Damages, if any, that have become due solely because
of the acceleration) have been cured or waived.
If an Event of Default occurs by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of
the Company with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to Section 3.07
hereof, then, upon acceleration of the Notes, an equivalent
premium shall also become and be immediately due and payable,
to the extent permitted by law, anything in this Indenture or
in the Notes to the contrary notwithstanding.
Section 6.03.Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment
of principal of and premium, interest and Liquidated Damages,
if any, on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder
of a Note in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04.Waiver of Past Defaults.
Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event
of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of
or premium, interest or Liquidated Damages, if any, on the
Notes (including in connection with an offer to purchase).
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to
any holder of any Notes for or as an inducement to any consent,
waiver or amendment of any terms or provisions of the Indenture
or the Notes, unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes which so
consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
Section 6.05.Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee in personal
liability.
Section 6.06.Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to
this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount
of the then outstanding Notes make a written request to
the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer
and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes
do not give the Trustee a direction inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07.Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal
of and premium, interest and Liquidated Damages, if any, on the
Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08.Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b)
occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of,
premium, interest and Liquidated Damages, if any, remaining
unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and Liquidated Damages, if any, and
such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09.Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes),
its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorgan-
ization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10.Priorities.
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment
of all compensation, expense and liabilities incurred, and
all advances made, by the Trustee and the Trustee's costs
and expenses of collection;
Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium, interest and
Liquidated Damages, if any, ratably, without preference or
priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, interest and
Liquidated Damages, if any, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11.Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding
Notes.
ARTICLE 7
TRUSTEE
Section 7.01.Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree
of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are
specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this
Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by
law.
Section 7.02.Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence
of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by
this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the
Company.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article 4 hereof. In
addition, the Trustee shall not be deemed to have knowledge of
any Default or Event of Default except: (1) any Event of
Default occurring pursuant to Section 6.01(a) or 6.01(b)
hereof; or (2) any Default or Event of Default of which is
Responsible Officer shall have received written notification or
obtained actual knowledge.
Section 7.03.Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal
with the Company, any Guarantor or any Affiliate of the Company
with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue as trustee or resign.
Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04.Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other
than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of
authentication.
Section 7.05.Notice of Defaults.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
Section 7.06.Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in
TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b)(2)
and Section 313(b)(1). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with
the SEC and each stock exchange on which the Notes are listed
in accordance with TIA Section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on
any stock exchange.
Section 7.07.Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture
and services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Trustee
against any and all losses, liabilities or expenses incurred by
it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the
Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company, any
Guarantor or any Holder or any other person) or liability in
connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence, bad
faith or willful misconduct. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not
relieve the Company or the Guarantors of their obligations
hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company and the Guarantors under
this Section 7.07 shall survive the satisfaction and discharge
of this Indenture.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a Lien prior to the Notes
on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(h) or (i) hereof
occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.
Section 7.08.Replacement of Trustee.
A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in
this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal
amount of the then outstanding Notes may remove the Trustee by
so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders of Notes of at least 10%
in principal amount of the then outstanding Notes may petition
any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a
Note who has been a Holder of a Note for at least six months,
fails to comply with Section 7.10 hereof, such Holder of a Note
may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for
in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09.Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee. As
soon as practicable, the successor Trustee shall mail a notice
of its succession to the Company and the Holders of the Notes.
Section 7.10.Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus
of at least $100 million as set forth in its most recent
published annual report of condition.
This Indenture shall always have a Trustee who satisfies
the requirements of TIA Section 310(a)(1), (2) and (5). The
Trustee is subject to TIA Section 310(b).
Section 7.11.Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01.Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers'
Certificate, at any time, exercise its rights under either
Section 8.02 or 8.03 hereof with respect to all outstanding
Notes upon compliance with the conditions set forth below in
this Article 8.
Section 0.00.Xxxxx Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.02, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have discharged its
obligations with respect to all outstanding Notes, and each
Guarantor shall be deemed to have discharged its obligations
with respect to its Subsidiary Guarantee, on the date the
conditions set forth in Section 8.04 below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the
outstanding Notes, and each Guarantor shall be deemed to have
paid and discharged its Subsidiary Guarantee (which in each
case shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in (a) and (b) below) and to have
satisfied all its other obligations under such Notes or
Subsidiary Guarantee and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders
of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth
in such Section, payments in respect of the principal of and
premium, if any, interest and Liquidated Damages, if any, on
such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 2.03,
2.04, 2.07, 2.10 and 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section
8.03 hereof.
Section 8.03.Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the Company and
each Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from
its obligations under the covenants contained in Article 4
(other than those in Sections 4.01, 4.02, 4.06 and 4.14) and in
clauses (c) and (d) of Section 5.01 hereof on and after the
date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company and any Guarantor may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(e) through 6.01(g) hereof shall not
constitute Events of Default.
Section 8.04.Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in
United States dollars, non-callable Government Securities,
or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of
and premium, interest and Liquidated Damages, if any, on
the outstanding Notes on the stated maturity thereof or on
the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from
the incurrence of Indebtedness, all or a portion of the
proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such
incurrence or within 30 days thereof);
(e) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or
constitute a default under, any material agreement or
instrument (other than this Indenture) to which the
Company or any of its Restricted Subsidiaries is a party
or by which the Company or any of its Restricted
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee
an Opinion of Counsel (which may be based on such solvency
certificates or solvency opinions as counsel deems
necessary or appropriate) to the effect that the trust
funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with
the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05.Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 8.04 hereof in
respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
cash or non-callable Government Securities deposited pursuant
to Section 8.04 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request of the Company any
money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06.Repayment to Company.
Subject to applicable escheat and abandoned property laws,
any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of, premium or Liquidated Damages, if any, or
interest on any Note and remaining unclaimed for two years
after such principal, and premium or Liquidated Damages, if
any, or interest has become due and payable shall be paid to
the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such
Note shall thereafter, as a secured creditor, look only to the
Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in the
New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the
Company.
Section 8.07.Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in
accordance with Section 8.05 hereof, by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.05 hereof; provided, however, that,
if the Company makes any payment of principal of, premium, if
any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01.Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the
Company, the Guarantors and the Trustee may amend or supplement
this Indenture or the Notes without the consent of any Holder
of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition
to or in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to the Holders of the Notes pursuant to
Article 5 hereof;
(d) to secure the Notes pursuant to the requirements
of Section 4.12 or otherwise;
(e) to make any change that would provide any
additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights
hereunder of any Holder of the Note;
(f) to comply with Article 10 hereof; or
(g) to comply with requirements of the SEC in order
to effect or maintain the qualification of this Indenture
under the TIA.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution
of any such amended or supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company and the
Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supple-
mental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02.With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the
Company, the Guarantors and the Trustee may amend or supplement
this Indenture and the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for the Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default or compliance with any provision of
this Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution
of any such amended or supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee
of the consent of the Holders of Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company and the
Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders
of Notes under this Section 9.02 to approve the particular form
of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the
Holders of Notes affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
amended or supplemental Indenture or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Holders of a majority in
principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any
provision of this Indenture or the Notes. However, without the
consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or
waiver;
(b) reduce the principal of or change the fixed
maturity of any Note or alter any of the provisions with
respect to the redemption of the Notes (except as provided
in Sections 3.09, 4.10 and 4.15 hereof);
(c) reduce the rate of or change the time for payment
of interest on any Note;
(d) waive a Default or Event of Default in the
payment of principal of or premium, interest or Liquidated
Damages, if any, on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a
majority in principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or Events
of Default or the rights of Holders of Notes to receive
payments of principal of or premium, interest or
Liquidated Damages, if any, on the Notes (except as
permitted in clause (g) below);
(g) waive a redemption payment with respect to any
Note (other than a payment required by Sections 4.10 and
4.15 hereof);
(h) alter the ranking of the Notes relative to other
Indebtedness of the Company; or
(i) make any change in the foregoing amendment and
waiver provisions.
Section 9.03.Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in a amended or supplemental Indenture
that complies with the TIA as then in effect.
Section 9.04.Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a
continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the
consent is not made on any Note. However, any such Holder of a
Note or subsequent Holder of a Note may revoke the consent as
to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds
every Holder.
Section 9.05.Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such
amendment, supplement or waiver.
Section 9.06.Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental
indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture until the
Board of Directors approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled to
receive and (subject to Section 7.01) shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this
Indenture.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Subsidiary Guarantee.
Subject to Section 10.06 hereof, the Guarantors hereby,
jointly and severally, unconditionally guarantee to each Holder
of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes held
thereby and the Obligations of the Company hereunder and
thereunder, that: (a) the principal of and premium, interest
and Liquidated Damages, if any, on the Notes will be promptly
paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal, premium, (to the extent
permitted by law) interest and Liquidated Damages, if any, on
the Notes, and all other payment Obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be
promptly paid in full and performed, all in accordance with the
terms hereof and thereof; and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other
Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at
stated maturity, by acceleration, redemption or otherwise.
Failing payment when so due of any amount so guaranteed or any
performance so guaranteed for whatever reason the Guarantors
will be jointly and severally obligated to pay the same
immediately. An Event of Default under this Indenture or the
Notes shall constitute an event of default under the Subsidiary
Guarantees, and shall entitle the Holders to accelerate the
Obligations of the Guarantors hereunder in the same manner and
to the same extent as the Obligations of the Company. The
Guarantors hereby agree that their Obligations hereunder shall
be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any
Holder with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to
enforce the same or any other circumstance (other than complete
performance) which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, hereby waives
diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and
covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the Obligations contained in
the Notes and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Company,
the Guarantors, or any Custodian, Trustee or other similar
official acting in relation to either the Company or the
Guarantors, any amount paid by the Company or any Guarantor to
the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor agrees that it shall not be
entitled to, and hereby waives, any right of subrogation in
relation to the Holders in respect of any Obligations
guaranteed hereby. Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (a) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of its Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations
guaranteed thereby, and (b) in the event of any declaration of
acceleration of such Obligations as provided in Article 6
hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantor for the
purpose of its Subsidiary Guarantee. The Guarantors shall have
the right to seek contribution from any non-paying Guarantor so
long as the exercise of such right does not impair the rights
of the Holders under the Subsidiary Guarantees.
Section 10.02. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section
10.01 hereof, each Guarantor hereby agrees that a notation of
such Subsidiary Guarantee substantially in the form of Exhibit
D hereto shall be endorsed by manual or facsimile signature by
an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by an Officer of such
Guarantor.
To the extent required by the provisions of Section 4.13
hereof, the Company shall cause each of its Restricted
Subsidiaries to execute a Subsidiary Guarantee substantially in
the form of Exhibit D. Such Subsidiary Guarantee shall be
accompanied by a supplemental indenture substantially in the
form of Exhibit E, along with the Opinion of Counsel and
Officers' Certificate required under Section 9.06 of this
Indenture; provided, however, that any Subsidiary that has been
properly designated as an Unrestricted Subsidiary in accordance
with this Indenture need not execute a Subsidiary Guarantee for
so long as it continues to constitute an Unrestricted
Subsidiary.
Each Guarantor hereby agrees that its Subsidiary Guarantee
shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary
Guarantee.
If an Officer whose signature is on the Subsidiary
Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Subsidiary Guarantee set forth in this Indenture on
behalf of the Guarantors.
Section 10.03. Guarantors May Consolidate, etc., on Certain
Terms.
(a) Except as set forth in Articles 4 and 5 hereof,
nothing contained in this Indenture shall prohibit a merger
between a Guarantor and another Guarantor or a merger between a
Guarantor and the Company.
(b) No Guarantor shall consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person),
another Person (other than the Company or another Guarantor),
whether or not affiliated with such Guarantor, unless,
(i) subject to the provisions of Section 10.04 hereof, the
Person formed by or surviving any such consolidation or merger
(if other than such Guarantor) assumes all the obligations of
such Guarantor pursuant to a supplemental indenture,
substantially in the form of Exhibit E hereto, under the Notes
and this Indenture; (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists;
(iii) such Guarantor, or any Person formed by or surviving any
such consolidation or merger, would have Consolidated Net Worth
(immediately after giving effect to such transaction), equal to
or greater than the Consolidated Net Worth of such Guarantor
immediately preceding the transaction; and (iv) the Company, at
the time of such transaction and after giving pro forma effect
thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in the
first paragraph of Section 4.09 hereof.
(c) In the case of any such consolidation or merger and
upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit E hereto, of the
Subsidiary Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants of this Indenture
to be performed by the Guarantor, such successor Person shall
succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor; provided,
however, that, solely for purposes of computing Consolidated
Net Income for purposes of clause (c) of the first paragraph of
Section 4.07 hereof, the Consolidated Net Income of any Person
other than the Company and its Restricted Subsidiaries shall
only be included for periods subsequent to the effective time
of such merger or consolidation. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All of the Subsidiary
Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.
Section 10.04. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the
assets or Capital Stock of any Guarantor, by way of merger,
consolidation or otherwise, then such Guarantor (in the event
of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or the Person acquiring the property (in the event
of a sale or other disposition of all of the assets of such
Guarantor) shall be released and relieved of any obligations
under its Subsidiary Guarantee; provided, however, that (i) in
the event such transaction constitutes an Asset Sale, the Net
Proceeds from such sale or other disposition are treated in
accordance with the provisions of Section 4.10 hereof and (ii)
the Company is in compliance with all other provisions of this
Indenture applicable to such disposition. Upon delivery by the
Company to the Trustee of an Officers' Certificate to the
effect of the foregoing, the Trustee shall execute any
documents reasonably required in order to evidence the release
of any Guarantor from its Obligation under its Subsidiary
Guarantee. Any Guarantor not released from its Obligations
under its Subsidiary Guarantee shall remain liable for the full
amount of principal of and premium, interest and Liquidated
Damages, if any, on the Notes and for the other Obligations of
such Guarantor under this Indenture as provided in this Article
10.
Section 10.05. Releases Following Designation as an
Unrestricted Subsidiary.
In the event that the Company designates a Guarantor to be
an Unrestricted Subsidiary, then such Guarantor shall be
released and relieved of any obligations under its Subsidiary
Guarantee; provided that such designation is conducted in
accordance with this Indenture.
Section 10.06. Limitation on Guarantor Liability.
For purposes hereof, each Guarantor's liability shall be
limited to the lesser of (a) the aggregate amount of the
Obligations of the Company under the Notes and this Indenture
and (b) the amount, if any, which would not have (i) rendered
such Guarantor "insolvent" (as such term is defined in the
Bankruptcy Law) or (ii) left such Guarantor with unreasonably
small capital at the time its Subsidiary Guarantee of the Notes
was entered into; provided, however, that, it will be a
presumption in any lawsuit or other proceeding in which a
Guarantor is a party that the amount guaranteed pursuant to the
Subsidiary Guarantee is the amount set forth in clause (a)
above unless any creditor, or representative of creditors of
such Guarantor, or debtor in possession or trustee in
bankruptcy of the Guarantor, otherwise proves in such a lawsuit
that the aggregate liability of the Guarantor is the amount set
forth in clause (b) above. In making any determination as to
solvency or sufficiency of capital of a Guarantor in accordance
with the previous sentence, the right of such Guarantor to
contribution from other Guarantors, and any other rights such
Guarantor may have, contractual or otherwise, shall be taken
into account.
Section 10.07. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article 10
shall in each case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as
if such Paying Agent were named in this Article 10 in place of
the Trustee.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the
imposed duties shall control.
Section 11.02. Notices.
Any notice or communication by the Company, any Guarantor
or the Trustee to the others is duly given if in writing and
delivered in person or mailed by first class mail (registered
or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or the Guarantors:
Trico Marine Services, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
With a copy to:
Jones, Walker, Waechter, Poitevent, Carrere &
Xxxxxxx, L.L.P.
Place St. Xxxxxxx
000 Xx. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
If to the Trustee:
(1) For payment, registration, transfer and exchange of the Notes:
By Hand:
Texas Commerce Bank National Association
One Main Place
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000 or (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Registered Bond Events
By Mail:
Texas Commerce Bank National Association
X.X. Xxx 0000
Xxxxxx, Xxxxx 00000-0000
Telephone No.: (000) 000-0000 or (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Registered Bond Events
(2) For all other communications relating the Notes:
Texas Commerce Bank National Association
Global Trust Services
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxx
If to the Paying Agent:
Texas Commerce Bank National Association
x/x Xxxxx Xxxxxxxx Xxxxx Xxxxxxx xx Xxx Xxxx
00 Xxxxx Xxxxxx, Xxxxx Xxxxxxxx
Xxxx 000, Windows 20 and 00
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000 or 000-0000
Telecopier No.: (000) 000-0000
The Company, any of the Guarantors or the Trustee, by
notice to the others may designate additional or different
addresses for subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and the next Business
Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed
to any Person described in TIA Section 313(c), to the extent required
by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same
time.
Section 11.03. Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314
(a)(4)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(a) a statement that the Person making such certi-
ficate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been
satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 11.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as
such, shall have any liability for any obligations of the
Company or any Guarantor under the Notes, the Subsidiary
Guarantees, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases
all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
SUBSIDIARY GUARANTEES.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Restricted Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 11.10. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify
or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Trico Marine Services, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer and
President
Trico Marine Assets, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
Chief Executive Officer and
President
Trico Marine Operators, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
Chief Executive Officer and
President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
Vice President and Trust Officer
Exhibit A-1
(Face of Note)
8-1/2% [Series A] [Series B] Senior Notes due 2005
No.
$_______________
CUSIP NO.
Trico Marine Services, Inc.
promises to pay to __________ or registered assigns, the
principal sum of ___________ Dollars on August 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
(SEAL)
Trico Marine Services, Inc.
By_____________________________
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred
to in the within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee
By________________________________
Authorized Signatory
Dated: ______________________
(Back of Note)
8-1/2% [Series A][Series B] Senior Notes due 2005
[Unless and until it is exchanged in whole or in part for
Notes in definitive form, this Note may not be transferred
except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such
successor Depository. Unless this certificate is presented by
an authorized representative of The Depository Trust Company
(55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), to the issuer or
its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede &
Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
in as much as the registered owner hereof, Cede & Co., has an
interest herein.][1]
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.][2]
**FOOTNOTES**
[1]:. This paragraph should be included only if the Note is issued in
global form.
[2]:. This paragraph should be removed upon the exchange of Series
A Notes for Series B Notes in the Exchange Offer or upon the transfer
of the Series A Notes that have been sold pursuant to the terms of
the Shelf Registration contemplated by the Registration Rights
Agreement.
1. Interest. Trico Marine Services, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the
principal amount of this Note at 8 1/2% per annum from July 21,
1997 until maturity and shall pay the Liquidated Damages
payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and
Liquidated Damages, if any, semi-annually in arrears on
February 1 and August 1 of each year, commencing February 1,
1998, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid,
from the date of original issuance; provided that if there is
no existing Default or Event of Default in the payment of
interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment date, except in the case of the
original issuance of Notes, in which case interest shall accrue
from the date of authentication. The Company shall pay
interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is the rate
then in effect; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard
to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Liquidated Damages to
the Persons who are registered Holders of Notes at the close of
business on the January 15 or July 15 next preceding the
Interest Payment Date, even if such Notes are cancelled after
such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes will be payable as to
principal, premium, interest and Liquidated Damages, if any, at
the office or agency of the Company maintained for such purpose
within the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages may be made
by check mailed to the Holders at their addresses set forth in
the register of Holders, and provided that payment by wire
transfer of immediately available funds will be required with
respect to principal of and interest, premium and Liquidated
Damages on all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts.
3. Paying Agent and Registrar. Initially, Texas
Commerce Bank National Association, the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any
such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of July 21, 1997 ("Indenture") among the
Company, the Guarantors and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The
Notes are general unsecured obligations of the Company limited
to $110,000,000 aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this
Paragraph 5, the Company shall not have the option to redeem
the Notes prior to August 1, 2001. Thereafter, the Company
shall have the option to redeem the Notes, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and
Liquidated Damages thereon to the applicable redemption date,
if redeemed during the twelve-month period beginning on
August 1 of the years indicated below:
Year Percentage
---- ----------
2001.................................... 104.250%
2002 ................................... 102.834%
2003 ................................... 101.417%
2004 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5 the Company may at any time prior to August 1,
2001, at its option, redeem the Notes, in whole or in part, at
the Make-Whole Price plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date. In
addition, at any time prior to July 17, 2000, the Company may
redeem up to 35% of the aggregate principal amount of Notes
originally issued at a redemption price of 108.5% of the
principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date,
with the net cash proceeds of one or more Qualified Equity
Offerings; provided that (a) at least $71.5 million in
aggregate principal amount of Notes remains outstanding
immediately after the occurrence of each such redemption and
(b) each such redemption shall occur within 60 days of the date
of the closing of each such Qualified Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder describing the
transaction that constitutes the Change of Control and setting
forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates
any Asset Sales, within 30 days of each date on which the
aggregate amount of Excess Proceeds exceeds $5.0 million, the
Company shall commence an offer to all Holders of Notes (as
"Asset Sale Offer") pursuant to Section 3.09 of the Indenture
to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash
in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture; provided, however, that,
if the Company is required to apply such Excess Proceeds to
repurchase, or to offer to repurchase, any Pari Passu
Indebtedness, the Company shall only be required to offer to
repurchase the maximum principal amount of Notes that may be
purchased out of the amount of such Excess Proceeds multiplied
by a fraction, the numerator of which is the aggregate
principal amount of Notes outstanding and the denominator of
which is the aggregate principal amount of Notes outstanding
plus the aggregate principal amount of Pari Passu Indebtedness
outstanding. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company (or such Subsidiary) may use such
deficiency for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that
only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased). Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and
may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of
the Notes.
8. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed
at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to
accrue on Notes or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between
a record date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder of a
Note, the Indenture or the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or
that does not adversely affect the legal rights under the
Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture
Act.
12. Defaults and Remedies. Events of Default include:
(i) default for 30 days in the payment when due of interest or
Liquidated Damages on the Notes; (ii) default in payment when
due of the principal of or premium, if any, on the Notes; (iii)
failure by the Company to comply with Section 4.10, 4.15 or
5.01 of the Indenture; (iv) failure by the Company for 60 days
after notice to comply with any of its other agreements in the
Indenture or the Notes; (v) default under any mortgage,
indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists or is created after the
date of the Indenture, which default (a) is caused by a failure
to pay principal of or premium or interest on such Indebtedness
prior to the expiration of any grace period provided in such
Indebtedness (a "Payment Default") or (b) results in the
acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$5.0 million or more; and provided, further, that if such
default is cured or waived or any such acceleration rescinded,
or such Indebtedness is repaid within a period of 10 days from
the continuation of such default beyond the applicable grace
period or the occurrence of such acceleration, as the case may
be, an Event of Default and any consequential acceleration of
the Notes shall be automatically rescinded, so long as said
rescission does not conflict with such judgment or decree; (vi)
failure by the Company or any of its Restricted Subsidiaries to
pay final judgments aggregating in excess of $5.0 million,
which judgments are not paid, discharged or stayed for a period
of 60 days; (vii) failure by any Guarantor to perform any
covenant set forth in its Subsidiary Guarantee, or the
repudiation by any Guarantor of its obligations under its
Subsidiary Guarantee or the unenforceability of any Subsidiary
Guarantee against a Guarantor for any reason; and (viii)
certain events of bankruptcy or insolvency with respect to the
Company or any Guarantor. If any Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all
the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in
the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee
may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default
in the payment of the principal of or premium, interest or
Liquidated Damages, if any, on the Notes. The Company is
required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. Defeasance. The Notes are subject to defeasance upon
the terms and conditions specified in the Indenture.
14. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company or any
Guarantor, as such, shall not have any liability for any
obligations of the Company or any Guarantor under the Notes,
the Subsidiary Guarantees or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
17. Abbreviations. Customary abbreviations may be used
in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
18. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Transferred Restricted
Securities shall have all the rights set forth in the
Registration Rights Agreement dated as of July 21, 1997, among
the Company, the Guarantors and the parties named on the
signature pages thereof (the "Registration Rights Agreement").
19. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed
on the Notes and the Trustee may use CUSIP numbers in notices
of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Trico Marine Services, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
Assignment Form
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________
to transfer this Note on the books of the Company. The agent
may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture,
check the box below:
___ Section 4.10 ____Section 4.15
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section
4.15 of the Indenture, state the amount you elect to have
purchased: $___________
Date:_____________ Your Signature:___________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:___________
Signature Guarantee:
SCHEDULE OF EXCHANGES OF NOTES[3]
The following exchanges of a part of this Global Note for other
Notes have been made:
Date of Amount of Amount of Principal Signature
Exchange decrease in increase in Amount of of
Principal Principal this Global authorized
Amount of Amount of Note officer of
this Global this Global following Trustee or
Note Note such Note
decrease Custodian
(or
increase)
-------- ----------- ----------- ---------- -----------
**FOOTNOTES**
[3]:. This should be included only if the Note is
issued in global form.
Exhibit A-2
(Face of Regulation S Temporary Global Note)
8-1/2% [Series A][Series B] Senior Notes due 2005
No.
$_______________
CUSIP NO.
Trico Marine Services, Inc.
promises to pay to Cede & Co. or registered assigns,
the principal sum of ______ Dollars on August 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
(SEAL) Trico Marine Services,Inc.
By__________________________________
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred
to in the within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee
By:________________________________
Authorized Signatory
Dated: _____________________
(Back of Regulation S Temporary Global Note)
8-1/2% [Series A][Series B] Senior Note due 2005
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) ("XXX"),XX THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1) (a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT OR
(d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM
IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S
TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON
PRIOR TO THE EXCHANGE OF THIS NOTE FOR A
Regulation S PERMANENT GLOBAL NOTE AS CONTEMPLATED
BY THE INDENTURE.
Trico Marine Services, Inc., a
Delaware corporation (the "Company"),
promises to pay interest on the principal
amount of this Note at the rate of 8 1/2% per
annum from July 21, 1997 until maturity
and shall pay the Liquidated Damages
payable pursuant to Section 5 of the
Registration Rights Agreement referred to
in the Indenture. The Company will pay
interest and Liquidated Damages, if any,
in United States dollars semi-annually in
arrears on February 1 and August 1,
commencing on February 1, 1998, or if any
such day is not a Business Day, on the
next succeeding Business Day (each an
"Interest Payment Date"). Interest on the
Notes shall accrue from the most recent
date to which interest has been paid or,
if no interest has been paid, from the
date of original issuance; provided that
if there is no existing Default or Event
of Default in the payment of interest, and
if this Note is authenticated between a
record date referred to on the face hereof
and the next succeeding Interest Payment
Date, interest shall accrue from such next
succeeding Interest Payment Date, except
in the case of the original issuance of
Notes, in which case interest shall accrue
from the date of authentication. The
Company shall pay interest (including
post-petition interest in any proceeding
under any Bankruptcy Law) on overdue
principal and premium, if any from time to
time on demand at a rate equal to the then
applicable interest rate on the Notes; it
shall pay interest (including post-
petition interest in any proceeding under
any Bankruptcy Law) on overdue
installments of interest and Liquidated
Damages (without regard to any applicable
grace period) from time to time on demand
at the same rate to the extent lawful.
Interest shall be computed on the basis of
a 360-day year comprised of twelve 30-day
months.
This Regulation S Temporary Global
Note is issued in respect of an issue of
8-1/2% Senior Notes due 2005 (the "Notes")
of the Company, limited to $110,000,000 in
aggregate principal amount, plus amounts,
if any, sufficient to pay premium, if any,
interest or Liquidated Damages, if any on
outstanding Notes. The Company issued
Notes under an Indenture (the "Indenture")
dated as of July 21, 1997, among the
Company, the Guarantors and the Trustee.
This Regulation S Temporary Global Note is
governed by the terms and conditions of
the Indenture governing the Notes, which
terms and conditions are incorporated
herein by reference and, except as
otherwise provided herein, shall be
binding on the Company and the Holder
hereof as if fully set forth herein.
Unless the context otherwise requires, the
terms used herein shall have the meanings
specified in the Indenture.
Until this Regulation S Temporary
Global Note is exchanged for Regulation S
Permanent Global Notes, the Holder hereof
shall not be entitled to receive payments
of interest or Liquidated Damages, if any,
hereon although interest and Liquidated
Damages, if any, will continue to accrue;
until so exchanged in full, this
Regulation S Temporary Global Note shall
in all other respects be entitled to the
same benefits as other Notes under the
Indenture.
This Regulation S Temporary Global
Note is exchangeable in whole or in part
for one or more Regulation S Permanent
Global Notes or 144A Global Notes only (i)
on or after the termination of the 40-day
restricted period (as defined in
Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion
of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange
of this Regulation S Temporary Global Note
for one or more Regulation S Permanent
Global Notes or 144A Global Notes, the
Trustee shall cancel this Regulation S
Temporary Global Note.
This Regulation S Temporary Global
Note shall not become valid or obligatory
until the certificate of authentication
hereon shall have been duly manually
signed by the Trustee in accordance with
the Indenture. This Regulation S
Temporary Global Note shall be governed by
and construed in accordance with the laws
of the State of the New York. All
references to "$," "Dollars," "dollars" or
"U.S. $" are to such coin or currency of
the United States of America as at the
time shall be legal tender for the payment
of public and private debts therein.
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of
this Regulation S Temporary Global Note
for other Global Notes have been made:
Principal Amount
Amount of Amount of increase of Signature of
decrease in in this Global Note authorized officer
Principal Amount Principal Amount following such of
of this Global of this Global decrease Trustee or Note
Date of Exchange Note Note (or increase) Custodian
---------------- ---------------- ------------------ ---------------- ------------------
Exhibit B-1
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER
FROM 144A GLOBAL NOTE TO REGULATION S
GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the
Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture, dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the Guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This letter relates to $
_______________ principal amount of Notes
which are evidenced by one or more 144A
Global Notes and held with the Depository
in the name of_____________ (the
"Transferor"). The Transferor has
requested a transfer of such beneficial
interest in the Notes to a Person who will
take delivery thereof in the form of an
equal principal amount of Notes evidenced
by one or more Regulation S Global Notes,
which amount, immediately after such
transfer, is to be held with the
Depository through Euroclear or Cedel or
both.
In connection with such request and
in respect of such Notes, the Transferor
hereby certifies that such transfer has
been effected in compliance with the
transfer restrictions applicable to the
Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 under
the United States Securities Act of 1933,
as amended (the "Securities Act"), and
accordingly the Transferor hereby further
certifies that:
(1) The offer of the Notes was
not made to a person in the United
States;
(2) either:
(a) at the time the buy
order was originated, the
transferee was outside the
United States or the Transferor
and any person acting on its
behalf reasonably believed and
believes that the transferee was
outside the United States; or
(b) the transaction was
executed in, on or through the
facilities of a designated
offshore securities market and
neither the Transferor nor any
person acting on its behalf
knows that the transaction was
prearranged with a buyer in the
United States;
(3) no directed selling efforts
have been made in contravention of
the requirements of Rule 904(b) of
Regulation S;
(4) the transaction is not part
of a plan or scheme to evade the
registration provisions of the
Securities Act; and
(5) upon completion of the
transaction, the beneficial interest
being transferred as described above
is to be held with the Depository
through Euroclear or Cedel or both.
Upon giving effect to this request to
exchange a beneficial interest in a 144A
Global Note for a beneficial interest in a
Regulation S Global Note, the resulting
beneficial interest shall be subject to
the restrictions on transfer applicable to
Regulation S Global Notes pursuant to the
Indenture and the Securities Act and, if
such transfer occurs prior to the end of
the 40-day restricted period associated
with the initial offering of Notes, the
additional restrictions applicable to
transfers of interests in the Regulation S
Temporary Global Note.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors. Terms used in this
certificate and not otherwise defined in
the Indenture have the meanings set forth
in Regulation S under the Securities Act.
[Insert Name of Transferor]
By____________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit B-2
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO
144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii)
of the Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This letter relates to $_________
principal amount of Notes which are
evidenced by one or more Regulation S
Global Notes and held with the Depository
through Euroclear or Cedel in the name of
________ (the "Transferor"). The
Transferor has requested a transfer of
such beneficial interest in the Notes to a
Person who will take delivery thereof in
the form of an equal principal amount of
Notes evidenced by one or more 144A Global
Notes, to be held with the Depository.
In connection with such request and
in respect of such Notes, the Transferor
hereby certifies that:
[CHECK ONE]
__ such transfer is being effected
pursuant to and in accordance with Rule
144A under the United States Securities
Act of 1933, as amended (the
"Securities Act"), and, accordingly,
the Transferor hereby further certifies
that the Notes are being transferred to
a Person that the Transferor reasonably
believes is purchasing the Notes for
its own account, or for one or more
accounts with respect to which such
Person exercises sole investment
discretion, and such Person and each
such account is a "qualified
institutional buyer" within the meaning
of Rule 144A in a transaction meeting
the requirements of Rule 144A;
or
__ such transfer is being effected
pursuant to and in accordance with Rule
144 under the Securities Act;
or
__ such transfer is being effected
pursuant to an exemption under the
Securities Act other than Rule 144A,
Rule 144 or Rule 904 to a Person who is
an Institutional Accredited Investor
and the Transferor further certifies
that such transfer complies with the
transfer restrictions applicable to
beneficial interests in Global Notes
bearing the legend set forth in Section
2.06(f) of the Indenture and the
requirements of the exemption claimed,
which certification is supported by (a)
if such transfer is in respect of a
principal amount of Notes at the time
of transfer of $100,000 or more, a
certificate executed by the transferee
in the form of Exhibit C to the
Indenture, or (b) if such transfer is
in respect of a principal amount of
Notes at the time of transfer of less
than $100,000, (i) a certificate
executed in the form of Exhibit C to
the Indenture and (ii) an Opinion of
Counsel provided by the Transferor or
the transferee (a copy of which the
Transferor has attached to this
certification), to the effect that (1)
such transfer is in compliance with the
Securities Act and (2) such transfer
complies with any applicable blue sky
securities laws of any state of the
United States;
or
__ such transfer is being effected
pursuant to an exemption from the
registration requirements of the
Securities Act other than one described
above, and the Transferor hereby
further certifies that the Notes are
being transferred in compliance with
the transfer restrictions applicable to
the Global Notes and in accordance with
the requirements of the exemption
claimed, which certification is
supported by an Opinion of Counsel,
provided by the transferor or the
transferee (a copy of which the
Transferor has attached to this
certification) in form reasonably
acceptable to the Company and to the
Registrar, to the effect that such
transfer is in compliance with the
Securities Act and any applicable blue
sky laws of any state of the United
States;
or
__ such transfer is being effected
pursuant to an effective registration
statement under the Securities Act;
and such Notes are being transferred in
compliance with any applicable blue sky
securities laws of any state of the United
States or any other applicable
jurisdiction.
Upon giving effect to this request to
exchange a beneficial interest in
Regulation S Global Notes for a beneficial
interest in 144A Global Notes, the
resulting beneficial interest shall be
subject to the restrictions on transfer
applicable to 144A Global Notes pursuant
to the Indenture and the Securities Act.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors.
[Insert Name of Transferor]
By___________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit B-3
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER
OF DEFINITIVE NOTES
(Pursuant to Section 2.06(b) of the
Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This relates to $
principal amount of Notes which are
evidenced by one or more Definitive Notes
in the name of (the
"Transferor"). The Transferor has
requested an exchange or transfer of such
Definitive Note(s) in the form of an equal
principal amount of Notes evidenced by one
or more Definitive Notes, to be delivered
to the Transferor or, in the case of a
transfer of such Notes, to such Person as
the Transferor instructs the Trustee.
In connection with such request and
in respect of the Notes surrendered to the
Trustee herewith for exchange (the
"Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
__ the Surrendered Notes are being
acquired for the Transferor's own
account, without transfer;
or
__ the Surrendered Notes are being
transferred to the Company or one of its
Subsidiaries;
or
__ the Surrendered Notes are being
transferred pursuant to and in
accordance with Rule 144A under the
United States Securities Act of 1933,
as amended (the "Securities Act"),
and, accordingly, the Transferor
hereby further certifies that the
Surrendered Notes are being
transferred to a Person that the
Transferor reasonably believes is
purchasing the Surrendered Notes for
its own account, or for one or more
accounts with respect to which such
Person exercises sole investment
discretion, and such Person and each
such account is a "qualified
institutional buyer" within the
meaning of Rule 144A, in each case in
a transaction meeting the
requirements of Rule 144A;
or
__ the Surrendered Notes are being
transferred in a transaction
permitted by Rule 144 under the
Securities Act;
or
__ the Surrendered Notes are being
transferred pursuant to an exemption
under the Securities Act other than
Rule 144A, Rule 144 or Rule 904 to
Person who is an Institutional
Accredited Investor and the
Transferor further certifies that the
transfer complies with the transfer
restrictions applicable to Definitive
Notes bearing the legend set forth in
Section 2.06(f) of the Indenture and
the requirements of the exemption
claimed, which certification is
supported by (a) if such transfer is
in respect of a principal amount of
Notes at the time of transfer of
$100,000 or more, a certificate
executed by the transferee in the
form of Exhibit C to the Indenture,
or (b) if such transfer is in respect
of a principal amount of Notes at the
time of transfer of less than
$100,000, (i) a certificate executed
in the form of Exhibit C to the
Indenture and (ii) an Opinion of
Counsel provided by the Transferor or
the transferee (a copy of which the
Transferor has attached to this
certification), to the effect that
(1) such transfer is in compliance
with the Securities Act and (2) such
transfer complies with any applicable
blue sky securities laws of any state
of the United States;
or
__ the Surrendered Notes are being
transferred pursuant to an effective
registration statement under the
Securities Act;
and the Surrendered Notes are being
transferred in compliance with any
applicable blue sky securities laws of any
state of the United States or any other
applicable jurisdiction.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors.
[Insert Name of Transferor]
By__________________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit B-4
FORM OF CERTIFICATE FOR EXCHANGE OR
REGISTRATION OF TRANSFER FROM 144A GLOBAL
NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO DEFINITIVE NOTE
(Pursuant to Section 2.06(c) of the
Indenture)
Texas Commerce Bank National Association,
as Trustee and Registrar
Re: 8-1/2% Senior Notes due 2005 of
Trico Marine Services, Inc.
Reference is hereby made to the
Indenture dated as of July 21, 1997 (the
"Indenture"), among Trico Marine Services,
Inc. (the "Company"), the guarantors named
therein (the "Guarantors") and Texas
Commerce Bank National Association, as
trustee (the "Trustee"). Capitalized
terms used but not defined herein shall
have the meanings given to them in the
Indenture.
This letter relates to $__________
principal amount of Notes which are
evidenced by a beneficial interest in one
or more 144A Global Notes or Regulation S
Permanent Global Notes in the name of
(the "Transferor"). The Transferor has
requested an exchange or transfer of such
beneficial interest in the form of an
equal principal amount of Notes evidenced
by one or more Definitive Notes, to be
delivered to the Transferor or, in the
case of a transfer of such Notes, to such
Person as the Transferor instructs the
Trustee.
In connection with such request and
in respect of the Notes surrendered to the
Trustee herewith for exchange (the
"Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
__ the Surrendered Notes are being
transferred to the beneficial owner
of such Notes;
or
__ the Surrendered Notes are being
transferred to the Company or one of
its Subsidiaries;
or
__ the Surrendered Notes are being
transferred pursuant to and in
accordance with Rule 144A under the
United States Securities Act of 1933,
as amended (the "Securities Act"),
and, accordingly, the Transferor
hereby further certifies that the
Surrendered Notes are being
transferred to a Person that the
Transferor reasonably believes is
purchasing the Surrendered Notes for
its own account, or for one or more
accounts with respect to which such
Person exercises sole investment
discretion, and such Person and each
such account is a "qualified
institutional buyer" within the
meaning of Rule 144A, in each case in
a transaction meeting they
requirements of Rule 144A;
or
__ the Surrendered Notes are being
transferred in a transaction
permitted by Rule 144 under the
Securities Act;
or
__ the Surrendered Notes are being
transferred pursuant to an effective
registration statement under the
Securities Act;
or
__ the Surrendered Notes are being
transferred pursuant to an exemption
under the Securities Act other than
Rule 144A, Rule 144 or Rule 904 to a
Person who is an Institutional
Accredited Investor and the
Transferor further certifies that the
transfer complies with the transfer
restrictions applicable to beneficial
interests in Global Notes bearing the
legend set forth in Section 2.06(f)
of the Indenture and the requirements
of the exemption claimed, which
certification is supported by (a) if
such transfer is in respect of a
principal amount of Notes at the time
of transfer of $100,000 or more, a
certificate executed by the
transferee in the form of Exhibit C
to the Indenture, or (b) if such
transfer is in respect of a principal
amount of Notes at the time of
transfer of less than $100,000, (i) a
certificate executed in the form of
Exhibit C to the Indenture and (ii)
an Opinion of Counsel provided by the
Transferor or the transferee (a copy
of which the Transferor has attached
to this certification), to the effect
that (1) such transfer is in
compliance with the Securities Act
and (2) such transfer complies with
any applicable blue sky securities
laws of any state of the United
States;
and the Surrendered Notes are being
transferred in compliance with any
applicable blue sky securities laws of any
state of the United States or any other
applicable jurisdiction.
This certificate and the statements
contained herein are made for your benefit
and the benefit of the Company and the
Guarantors.
[Insert Name of Transferor]
By ________________________
Name:
Title:
Dated:
cc: Trico Marine Services, Inc.
Exhibit C
FORM OF CERTIFICATE TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
--------------, -------
Texas Commerce Bank National Association
as Trustee and Registrar
Ladies and Gentleman:
We are delivering this letter in
connection with an offering of 8-1/2%
Senior Notes due 2005 (the "Notes") of Trico
Marine Services, Inc., a Delaware corporation
(the "Company"), all as described in the
Offering Memorandum (the "Offering Memorandum")
relating to the offering of the Notes. We
hereby confirm that:
(i) we are an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended
(the "Securities Act"), or an entity in which
all of the equity owners are accredited investors
within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act (an
"Institutional Accredited Investor");
(ii) any purchase of Notes by us will be
for our own account or for the account of
one or more other Institutional Accredited
Investors;
(iii) in the event that we purchase any
Notes, we will acquire Notes having a minimum
purchase price of at least $100,000 for our
own account and for each separate account
for which we are acting;
(iv) we have such knowledge and experience
in financial and business matters that we are
capable of evaluating the merits and risks of
purchasing Notes and we, and any accounts
for which we are acting, are able to bear the
economic risks of its or their investment;
(v) we are not acquiring Notes with a
view to any distribution thereof in a transaction
that would violate the Securities Act or
the securities laws of any State of the
United States or any other applicable jurisdiction;
provided that the disposition of our property
and the property of any accounts for which we
are acting as fiduciary shall remain at all times
within our control; and
(vi) we have received a copy of the
Offering Memorandum and acknowledge that we
have had access to such financial and other
information, and have been afforded the
opportunity to ask such questions of representatives
of the Company and receive answers thereto,
as we deem necessary in connection with our
decision to purchase Notes.
We understand that the Notes were offered
in a transaction not involving any public
offering within the meaning of the Securities
Act and that the Notes have not been registered
under the Securities Act, and we agree, on
our own behalf and on behalf of each account
for which we acquire any Notes, that such
Notes may be offered, resold, pledged or otherwise
transferred only (i) to a person whom we
reasonably believe to be a qualified
institutional buyer (as defined in Rule
144A under the Securities Act) in a
transaction meeting the requirements of
Rule 144A under the Securities Act, in a
transaction meeting the requirements of
Rule 144 under the Securities Act, outside
the United States in a transaction meeting
the requirements of Rule 904 under the
Securities Act, or in accordance with
another exemption from the registration
requirements of the Securities Act (and
based upon an opinion of counsel if the
Company so requests), (ii) to the Company
or (iii) pursuant to an effective
registration statement, and in each case,
in accordance with any applicable
securities laws of any State of the United
States or any other applicable
jurisdiction. We understand that the
registrar will not be required to accept
for registration of transfer any Notes,
except upon presentation of evidence
satisfactory to the Company that the
foregoing restrictions on transfer have
been complied with.
We acknowledge that you and the
Company will rely upon our confirmations,
acknowledgments and agreements set forth
herein, and we agree to notify you
promptly in writing if any of our
representations or warranties herein
ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
___________________________
[Name of Purchaser]
By_________________________
Name:
Title:
Address:
Exhibit D
SUBSIDIARY GUARANTEE
Subject to Section 10.06 of the
Indenture, each Guarantor hereby, jointly
and severally, unconditionally guarantees
to each Holder of a Note authenticated and
delivered by the Trustee and to the
Trustee and its successors and assigns,
irrespective of the validity and
enforceability of the Indenture, the Notes
and the Obligations of the Company under
the Notes or under the Indenture, that:
(a) the principal of, premium, if any,
interest and Liquidated Damages, if any,
on the Notes will be promptly paid in full
when due, subject to any applicable grace
period, whether at maturity, by
acceleration, redemption or otherwise, and
interest on overdue principal, premium, if
any, (to the extent permitted by law)
interest on any interest, if any, and
Liquidated Damages, if any, on the Notes
and all other payment Obligations of the
Company to the Holders or the Trustee
under the Indenture or under the Notes
will be promptly paid in full and
performed, all in accordance with the
terms thereof; and (b) in case of any
extension of time of payment or renewal of
any Notes or any of such other payment
Obligations, the same will be promptly
paid in full when due or performed in
accordance with the terms of the extension
or renewal, subject to any applicable
grace period, whether at stated maturity,
by acceleration, redemption or otherwise.
Failing payment when so due of any amount
so guaranteed or any performance so
guaranteed for whatever reason, the
Guarantors will be jointly and severally
obligated to pay the same immediately. An
Event of Default under the Indenture or
the Notes shall constitute an event of
default under this Subsidiary Guarantee,
and shall entitle the Holders to
accelerate the Obligations of the
Guarantors hereunder in the same manner
and to the same extent as the Obligations
of the Company. The Guarantors hereby
agree that their Obligations hereunder
shall be unconditional, irrespective of
the validity, regularity or enforceability
of the Notes or the Indenture, the absence
of any action to enforce the same, any
waiver or consent by any Holder with
respect to any provisions hereof or
thereof, the recovery of any judgment
against the Company, any action to enforce
the same or any other circumstance which
might otherwise constitute a legal or
equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment,
filing of claims with a court in the event
of insolvency or bankruptcy of the
Company, any right to require a proceeding
first against the Company, protest, notice
and all demands whatsoever and covenants
that this Subsidiary Guarantee will not be
discharged except by complete performance
of the Obligations contained in the Notes
and the Indenture. If any Holder or the
Trustee is required by any court or
otherwise to return to the Company, the
Guarantors, or any Note Custodian,
Trustee, liquidator or other similar
official acting in relation to either the
Company or the Guarantors, any amount paid
by the Company or any Guarantor to the
Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore
discharged, shall be reinstated in full
force and effect. Each Guarantor agrees
that it shall not be entitled to, and
hereby waives, any right of subrogation in
relation to the Holders in respect of any
Obligations guaranteed hereby. Each
Guarantor further agrees that, as between
the Guarantors, on the one hand, and the
Holders and the Trustee, on the other
hand, (a) the maturity of the Obligations
guaranteed hereby may be accelerated as
provided in Article 6 of the Indenture for
the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or
other prohibition preventing such
acceleration in respect of the Obligations
guaranteed thereby, and (b) in the event
of any declaration of acceleration of such
Obligations as provided in Article 6 of
the Indenture, such Obligations (whether
or not due and payable) shall forthwith
become due and payable by the Guarantor
for the purpose of this Subsidiary
Guarantee. The Guarantors shall have the
right to seek contribution from any non-
paying Guarantor so long as the exercise
of such right does not impair the rights
of the Holders under the Subsidiary
Guarantees.
The obligations of the Guarantor to
the Holders and to the Trustee pursuant to
this Subsidiary Guarantee and the
Indenture are expressly set forth in
Article 10 of the Indenture, and reference
is hereby made to such Indenture for the
precise terms of this Subsidiary
Guarantee. The terms of Articles 10 of
the Indenture are incorporated herein by
reference. This Subsidiary Guarantee is
subject to release as and to the extent
provided in Sections 10.04 and 10.05 of
the Indenture.
This is a continuing Guarantee and
shall remain in full force and effect and
shall be binding upon each Guarantor and
its respective successors and assigns to
the extent set forth in the Indenture
until full and final payment of all of the
Company's Obligations under the Notes and
the Indenture and shall inure to the
benefit of the successors and assigns of
the Trustee and the Holders and, in the
event of any transfer or assignment of
rights by any Holder or the Trustee, the
rights and privileges herein conferred
upon that party shall automatically extend
to and be vested in such transferee or
assignee, all subject to the terms and
conditions hereof. This is a Subsidiary
Guarantee of payment and not a guarantee
of collection.
This Subsidiary Guarantee shall not
be valid or obligatory for any purpose
until the certificate of authentication on
the Note upon which this Subsidiary
Guarantee is noted shall have been
executed by the Trustee or an
authenticating agent under the Indenture
by the manual signature of one of its
authorized officers.
For purposes hereof, each Guarantor's
liability shall be limited to the lesser
of (i) the aggregate amount of the
Obligations of the Company under the Notes
and the Indenture and (ii) the amount, if
any, which would not have (A) rendered
such Guarantor "insolvent" (as such term
is defined in the Bankruptcy Law and in
the Debtor and Creditor Law of the State
of New York) or (B) left such Guarantor
with unreasonably small capital at the
time its Subsidiary Guarantee of the Notes
was entered into; provided that, it will
be a presumption in any lawsuit or other
proceeding in which a Guarantor is a party
that the amount guaranteed pursuant to the
Subsidiary Guarantee is the amount set
forth in clause (i) above unless any
creditor, or representative of creditors
of such Guarantor, or debtor in possession
or trustee in bankruptcy of such
Guarantor, otherwise proves in such a
lawsuit that the aggregate liability of
the Guarantor is limited to the amount set
forth in clause (ii) above. The Indenture
provides that, in making any determination
as to the solvency or sufficiency of
capital of a Guarantor in accordance with
the previous sentence, the right of such
Guarantors to contribution from other
Guarantors and any other rights such
Guarantors may have, contractual or
otherwise, shall be taken into account.
Capitalized terms used herein have
the same meanings given in the Indenture
unless otherwise indicated.
[GUARANTORS]
By__________________________________
Name:
Title:
Exhibit E
TRICO MARINE SERVICES, INC.
and
the Guarantors named herein
______________________________________
SERIES A AND SERIES B
8-1/2% SENIOR NOTES DUE 2005
________________________________________
___________________
FORM OF SUPPLEMENTAL INDENTURE
AND AMENDMENT - SUBSIDIARY GUARANTEE
DATED AS OF ___________, ____
___________________
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
___________________
This SUPPLEMENTAL INDENTURE, dated as
of __________ ___, ____, is among Trico
Marine Services, Inc., a Delaware
corporation (the "Company"), each of the
parties identified under the caption
"Guarantors" on the signature page hereto
(the "Guarantors") and Texas Commerce Bank
National Association, as Trustee.
RECITALS
WHEREAS, the Company, the Guarantors
and the Trustee entered into an Indenture,
dated as of July 21, 1997 (the
"Indenture"), pursuant to which the
Company issued $110,000,000 in principal
amount of 8-1/2% Senior Notes due 2005
(the "Notes"); and
WHEREAS, Section 9.01(f) of the
Indenture provides that the Company and
the Trustee may amend or supplement the
Indenture in order to execute a guarantee
(a "Subsidiary Guarantee") to comply with
Section 10.02 or 10.04 thereof without the
consent of the Holders of the Notes; and
WHEREAS, all acts and things
prescribed by the Indenture, by law and by
the Certificate of Incorporation and the
Bylaws of the Company, of the Guarantors
and of the Trustee necessary to make this
Supplemental Indenture a valid instrument
legally binding on the Company, the
Guarantors and the Trustee, in accordance
with its terms, have been duly done and
performed;
NOW, THEREFORE, to comply with the
provisions of the Indenture and in
consideration of the above premises, the
Company, the Guarantors and the Trustee
covenant and agree for the equal and
proportionate benefit of the respective
Holders of the Notes as follows:
ARTICLE 1
Section 1.01. This Supplemental
Indenture is supplemental to the Indenture
and does and shall be deemed to form a
part of, and shall be construed in
connection with and as part of, the
Indenture for any and all purposes.
Section 1.02. This Supplemental
Indenture shall become effective
immediately upon its execution and
delivery by each of the Company, the
Guarantors and the Trustee.
ARTICLE 2
From this date, in accordance with
Section 10.02 or 10.04 and by executing
this Supplemental Indenture and the
accompanying Subsidiary Guarantee (a copy
of which is attached hereto), the
Guarantors whose signatures appear below
are subject to the provisions of the
Indenture to the extent provided for in
Article 10 thereunder.
ARTICLE 3
Section 3.01. Except as specifically
modified herein, the Indenture and the
Notes are in all respects ratified and
confirmed (mutatis mutandis) and shall
remain in full force and effect in
accordance with their terms with all
capitalized terms used herein without
definition having the same respective
meanings ascribed to them as in the
Indenture.
Section 3.02. Except as otherwise
expressly provided herein, no duties,
responsibilities or liabilities are
assumed, or shall be construed to be
assumed, by the Trustee by reason of this
Supplemental Indenture. This Supplemental
Indenture is executed and accepted by the
Trustee subject to all the terms and
conditions set forth in the Indenture with
the same force and effect as if those
terms and conditions were repeated at
length herein and made applicable to the
Trustee with respect hereto.
Section 3.03. THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
Section 3.04. The parties may sign
any number of copies of this Supplemental
Indenture. Each signed copy shall be an
original, but all of such executed copies
together shall represent the same
agreement.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental
Indenture to be duly executed, all as of
the date first written above.
TRICO MARINE SERVICES, INC.
By__________________________________
Name:
Title:
GUARANTORS
[______________________]
By__________________________________
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By__________________________________
Name:
Title:
