TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
$70,000,000
8 1/2% Senior Notes due 2005, Series E
REGISTRATION RIGHTS AGREEMENT
Dated as of December 24, 1997
XXXXXXXXX & COMPANY, INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXXX & CO. INC.
This Registration Rights Agreement (this "Agreement") is
made and entered into as of December 24, 1997 by and among Trico
Marine Services, Inc., a Delaware corporation (the "Company"),
Trico Marine Assets, Inc. and Trico Marine Operators, Inc. (each
a "Guarantor" and, collectively, the "Guarantors"), and
Xxxxxxxxx & Company, Inc., Bear, Xxxxxxx & Co. Inc. and Xxxxxxxx
& Co. Inc. (the "Initial Purchasers"), who have agreed to
purchase $70,000,000 aggregate principal amount of the Company's
8 1/2% Senior Notes due 2005, Series E (the "Series E Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated December 18, 1997 (the "Purchase Agreement"), by and among
the Company, the Guarantors and the Initial Purchasers. In order
to induce the Initial Purchasers to purchase the Series E Notes,
the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Series E Notes are
originally issued under the Indenture.
Commission: The Securities and Exchange Commission.
Consummate: The Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the Act
of the Exchange Offer Registration Statement relating to the
Series F Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Series F Notes in
the same aggregate principal amount as the aggregate
principal amount of Series E Notes that were tendered by
Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series E
Notes, each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company under
the Act of the Series F Notes pursuant to a Registration
Statement pursuant to which the Company offers the Holders
of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Series F
Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer,
including the related Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series E Notes (i) to certain
"qualified institutional buyers," as such term is defined in
Rule 144A under the Act, (ii) to certain institutional
"accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act
("Accredited Institutions") and (iii) outside the United
States to certain non-U.S. Persons meeting the requirements
of Rule 904 under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of December 24,
1997, among the Company, Texas Commerce Bank National
Association, as trustee (the "Trustee"), and the Guarantors,
pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and
the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series E Notes and the Series F Notes.
Person: An individual, partnership, corporation,
trust, limited liability company or unincorporated
organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment
Date relating to Notes, each Person who is a Holder of Notes
on the record date with respect to the Interest Payment Date
on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company relating to (a) an offering of Series F Notes
and the Subsidiary Guarantees pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement,
in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by
reference therein.
Series F Notes: The Company's 8 1/2% Senior Notes due
2005, Series F to be issued pursuant to the Indenture and
the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
Subsidiary Guarantees: The joint and several
guarantees of the Company's payment obligations under the
Notes by the Guarantors.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series E Note
until (i) the date on which such Series E Note has been
exchanged by a person other than a Broker-Dealer for a
Series F Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a
Series E Note for a Series F Note, the date on which such
Series F Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Series E Note has
been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the
date on which such Series E Note is distributed to the
public pursuant to Rule 144 under the Act or may be
distributed to the public pursuant to Rule 144(k) under the
Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to
an underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), the
Company and the Guarantors shall (i) cause to be filed with the
Commission on or before the 60th day after the Closing Date, a
Registration Statement under the Act relating to the Series F
Notes, the Subsidiary Guarantees and the Exchange Offer, (ii) use
their reasonable best efforts to cause such Registration
Statement to become effective on or before the 120th day after
the Closing Date, (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement
to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings in connection
with the registration and qualification of the Series F Notes and
the Subsidiary Guarantees to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit the Exchange Offer
to be Consummated, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate
form under the Act permitting registration of the Series F Notes
to be offered in exchange for the Transfer Restricted Securities
and to permit resales of the Series F Notes held by Broker-
Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange
Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20
business days. The Company and the Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Series F Notes and
the Subsidiary Guarantees shall be included in the Exchange Offer
Registration Statement. The Company and the Guarantors shall use
their reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in any
event on or prior to the 180th day after the Closing Date.
(c) The Company and the Guarantors shall indicate in a
"Plan of Distribution" section within the Prospectus contained in
the Exchange Offer Registration Statement that any Broker-Dealer
who holds Notes that are Transfer Restricted Securities and that
were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company) may
exchange such Series E Notes pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with
any resales of the Series F Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit
such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy
after the date of this Agreement.
The Company and the Guarantors shall use their
reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes
acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of one year from the
date on which the Exchange Offer Registration Statement is
declared effective.
The Company and the Guarantors shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such one-year period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the
Guarantors are not required to file an Exchange Offer
Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) any Holder of
Transfer Restricted Securities notifies the Company prior to the
20th day following the Consummation of the Exchange Offer (A)
that such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer or (B) that such
Holder may not resell the Series F Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration
Statement is not available for such resales by such Holder, then
the Company and the Guarantors shall use their reasonable best
efforts to:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 60th day after the
date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement and (2)
the 060th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) above (such earliest date being
the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 60th
day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their reasonable best
efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time,
for a period of at least two years following the Closing Date or,
if earlier, until the Shelf Registration Statement terminates
when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 20 business days after receipt
of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities
shall be entitled to Liquidated Damages pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information.
Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the
information previously furnished to the Company by such Holder
not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement
to be filed is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any such
Registration Statement has not been declared effective by the
Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target
Date"), whether or not the Company and the Guarantors have
breached any obligations to use their reasonable best efforts to
cause any such Registration Statement to be declared effective,
(iii) the Exchange Offer has not been Consummated within 180 days
of the Closing Date with respect to the Exchange Offer
Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective on or
prior to the Effectiveness Target Date (each such event referred
to in clauses (i) through (iv), a "Registration Default"), the
Company and the Guarantors hereby jointly and severally agree to
pay liquidated damages to each Holder of Transfer Restricted
Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an
amount equal to $.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder for each week
or portion thereof that the Registration Default continues. The
amount of the liquidated damages shall increase by an additional
$.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a
maximum amount of liquidated damages of $.20 per week per $1,000
principal amount of Transfer Restricted Securities. All accrued
liquidated damages shall be paid to Record Holders by the Company
by wire transfer of immediately available funds or by federal
funds check on each Damages Payment Date. Following the cure of
all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of liquidated damages with
respect to such Transfer Restricted Securities will cease.
All obligations of the Company and the Guarantors set forth
in the preceding paragraph that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall
have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Guarantors shall
comply with all of the provisions of Section 6(c) below, shall
use their reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer
is permitted by applicable law, the Company and the
Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company
and the Guarantors to Consummate the Exchange Offer for such
Series E Notes. The Company and the Guarantors hereby agree
to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
The Company and the Guarantors hereby agree, however, to (A)
participate in telephonic conferences with the Commission,
(B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that the Exchange
Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission
staff of such submission.
(ii) The Initial Purchasers, for themselves and on
behalf of the Holders, hereby acknowledge and agree, and
each Holder by its purchase of Transfer Restricted
Securities shall be deemed to have acknowledged and agreed,
that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated
in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause
(i) above) and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a
secondary resale transaction should be covered by an
effective registration statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Series F
Notes obtained by such Holder in exchange for Series E Notes
acquired by such Holder directly from the Company.
(iii)Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available
June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a
representation that neither the Company nor any Guarantor
has entered into any arrangement or understanding with any
Person to distribute the Series F Notes to be received in
the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the
Exchange Offer is acquiring the Series F Notes in its
ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the Series F Notes received in the Exchange
Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, if required, the Company and the
Guarantors shall comply with all the provisions of Section 6(c)
below and shall use their reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or
methods of distribution thereof and, pursuant thereto, the
Company and the Guarantors will prepare and file with the
Commission in accordance with Section 4(a) hereof a Shelf
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales
of Notes by Broker-Dealers), the Company and the Guarantors
shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide
all requisite financial statements (including, if required
by the Act or any regulation thereunder, financial
statements of the Guarantors) for the period specified in
Section 3(b) or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B)
not to be effective and usable for the resale of Transfer
Restricted Securities during the period required by this
Agreement, the Company and the Guarantors shall file
promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause
(A) or (B), use their reasonable best efforts to cause such
amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3(b) or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Act, and to comply
fully with the applicable provisions of Rules 424 and 430A
under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(iii)advise the underwriter(s), if any, and selling
Holders promptly and, if requested by any such Person, to
confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by
any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or
the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the
Guarantors shall use their reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (but
excluding any documents incorporated by reference as a
result of the Company's periodic reporting requirements
under the Exchange Act), and neither the Company nor any
Guarantors shall file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (excluding all such
documents incorporated by reference as a result of the
Company's periodic reporting requirements under the Exchange
Act) to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within five
business days after the receipt thereof. A selling Holder
or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission;
(v) promptly following the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the selling Holders and to the underwriter(s), if any, make
the Company's representatives available for discussion of
such document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if
any, reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or
any of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company
and the Guarantors and cause the Company's and the
Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and
prior to its effectiveness; provided, however, that the
foregoing inspection and information gathering (i) shall be
coordinated on behalf of the selling Holders, underwriters,
or any representative thereof, by one counsel, who shall be
Xxxxxx & Xxxxxx L.L.P. or such other counsel as may be
chosen by the Holders of a majority in principal amount of
Transfer Restricted Securities and (ii) shall not be
available for any such Holder who does not agree in writing
to hold such information in confidence.
(vii)if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if
any, may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount
of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii)furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons
reasonably may request; the Company and the Guarantors
hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto; provided that such use of
the Prospectus and any amendment or supplement thereto and
such offering and sale conforms to the Plan of Distribution
set forth in the Prospectus and complies with the terms of
this Agreement and all applicable laws and regulations
thereunder;
(x) in the event of an Underwritten Registration,
enter into such customary agreements (including an
underwriting agreement), make such customary representations
and warranties, deliver such customary documents and
certificates and take all such other customary actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant
to any Shelf Registration Statement contemplated by this
Agreement, all to such extent as may be requested by any
Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Shelf
Registration Statement contemplated by this Agreement; and,
if the registration is an Underwritten Registration, the
Company and the Guarantors shall:
(A) furnish to each selling Holder upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement,
signed on behalf of the Company by two senior
officers, one of whom must be its Chief Financial
Officer, confirming, as of such date, the matters
set forth in paragraphs (a), (c) and (d) of
Section 8 of the Purchase Agreement with respect
to the transactions contemplated by the Shelf
Registration Statement;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement,
of counsel for the Company and the Guarantors,
covering the matters set forth in Exhibit A of the
Purchase Agreement with respect to the
transactions contemplated by the Shelf
Registration Statement, and in any event including
a statement to the effect that such counsel has
participated in conferences with officers and
other representatives of the Company and the
Guarantors, representatives of the independent
accountants of the Company and the Guarantors and
representatives of the Initial Purchasers at which
the contents of the Registration Statement and
related matters were discussed and, although it
does not assume any responsibility for the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement, during the course of such participation
no facts came to its attention that caused such
counsel to believe that the Registration
Statement, at the time such Registration Statement
or any post-effective amendment thereto became
effective, contained any untrue statement of a
material fact or omitted to state any fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus contained in such Registration
Statement as of its date contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading (except as to financial statements and
related notes, the financial statement schedules
and other financial and statistical data included
therein); and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf
Registration Statement, from the Company's
independent accountants if such comfort letter
shall be issuable to the selling Holders in
accordance with the relevant accounting industry
pronouncements, in the customary form and covering
matters of the type customarily covered in comfort
letters by underwriters in connection with primary
underwritten offerings, and affirming the matters
set forth in the comfort letters delivered
pursuant to Section 8(g) of the Purchase
Agreement, without exception; and
(B) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company and the Guarantors pursuant to this clause (x),
if any.
If at any time the representations and warranties of the
Company and the Guarantors contemplated in clause (A)(1)
above cease to be true and correct, the Company shall so
advise the Initial Purchasers and the underwriter(s), if
any, and each selling Holder promptly and, if requested by
any such Person, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders,
the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or
things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor the
Guarantors shall be required to register or qualify as a
foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of
process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xii)issue, upon the request of any Holder of Series E
Notes covered by the Shelf Registration Statement, Series F
Notes, having an aggregate principal amount equal to the
aggregate principal amount of Series E Notes being sold by
such Holder; such Series F Notes to be registered in the
name of the purchaser(s) of such Notes, as the case may be;
in return, the Series E Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii)cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in
such names as the Holders or the underwriter(s), if any, may
reasonably request at least two business days prior to any
sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv)if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the
Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities that are in a form eligible for
deposit with the Depository Trust Company;
(xvi)cooperate and assist in any filings required to be
made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD;
(xvii)otherwise use their reasonable best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need
not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xviii)cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use
their reasonable best efforts to cause the Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xix)cause all Transfer Restricted Securities covered
by the Registration Statement to be listed on each
securities exchange on which the Notes are then listed if
requested by the Holders of a majority in aggregate
principal amount of Series E Notes or the managing
underwriter(s), if any; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will keep such notice
confidential and forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
6(c)(xiv) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof or shall have received
the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the
Guarantors' performance of or compliance with this Agreement will
be borne by the Company and the Guarantors, regardless of whether
a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holder with
the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be
required by the rules and regulations of the NASD)); (ii) all
fees and expenses of compliance with federal securities and state
Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Series F Notes to be
issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection
with listing Notes on a national securities exchange or automated
quotation system, if any; and (vi) all fees and disbursements of
independent public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company and the Guarantors will, in any event, bear
their internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts,
retained by the Company or any Guarantor. The Company shall not
be responsible for any other expenses or costs, including but not
limited to commissions, fees and discounts of underwriters,
brokers, dealers and agents.
(b) In connection with any Registration Statement required
by this Agreement (excluding the Exchange Offer Registration
Statement), the Company and the Guarantors will reimburse the
Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees
and disbursements of not more than one counsel, who shall be
Xxxxxx & Xxxxxx L.L.P. or such other counsel as may be chosen by
the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder, (ii) each
Initial Purchaser, (iii) each person, if any, who controls any
Holder or Initial Purchaser within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act and (iii) the
respective officers, directors, partners, employees,
representatives and agents of any Holder or Initial Purchaser or
any controlling person (any person referred to in clauses (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), to the fullest extent lawful, from and against any and
all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys' fees and any
and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or in any supplement
thereto or amendment thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and the
Guarantors will not be liable in any such case to the extent, but
only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
the any of the Holders expressly for use therein. This indemnity
agreement will be in addition to any liability that the Company
and the Guarantors may otherwise have, including under this
Agreement.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the
Company, each of the Guarantors and each person, if any, who
controls the Company or any Guarantor within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and
each of their respective officers, directors, employers,
partners, representatives and agents to the same extent as the
foregoing indemnity from the Company and the Guarantors to each
of the Indemnified Holders, but only with respect to information
relating to such Holder furnished in writing by such Holder for
use in any Registration Statement, or in any amendment thereof or
supplement thereto; provided, however, that in no case shall any
selling Holder be liable or responsible for any amount in excess
of proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification
obligation. This indemnity will be in addition to any liability
that the Holders may otherwise have, including under this
Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to
be sought in writing of the commencement thereof (but the failure
so to notify an indemnifying party shall not relieve it from any
liability that it may have under this Section 8 or otherwise
except to the extent that it has been prejudiced in any material
respect by such failure). In case any such action is brought
against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect
by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party,
to assume and control the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right
to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that
there may be defenses available to it that are different from or
additional to those available to one or all of the indemnifying
parties (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees
and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under
subsection (a) or (b) above shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for
all indemnified parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without
its prior written consent; provided that such consent was not
unreasonably withheld.
SECTION 9. CONTRIBUTION
In order to provide for contribution in circumstances in
which the indemnification provided for in Section 8 is for any
reason held to be unavailable or is insufficient to hold harmless
a party indemnified thereunder, the Company and the Guarantors,
on the one hand, and the Holders on the other hand, shall
contribute to the aggregate losses, claims, damages, liabilities
and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claims asserted, but
after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the
Guarantors, any contribution received by the Company and the
Guarantors from persons, other than a Holder, who may also be
liable for contribution, including persons who control the
Company and the Guarantors within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act) to which the
Company, the Guarantors or any Holder may be subject, (i) in such
proportion as is appropriate to reflect the relative fault of the
Company and the Guarantors, on one hand, and each Holder, on the
other hand, in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or
expenses, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative fault referred to in clause (i)
above but also other relevant equitable considerations. The
relative fault of the Company and the Guarantors, on one hand,
and of each Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company, the Guarantors or such Holder and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company,
the Guarantors and each Holder of Transfer Restricted Securities
agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation that does not take into
account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 9, (i) in no case
shall any Holder be required to contribute any amount in excess
of the amount by which the proceeds received by such Holder upon
the sale of the Transfer Restricted Securities giving rise to
such obligation exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission and
(ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9,
(A) each person, if any, who controls any of the Holders within
the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (B) the respective officers, directors,
partners, employees, representatives and agents of such Holder or
any controlling person shall have the same rights to contribution
as the Holders, and each person, if any, who controls the Company
or any Guarantor within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Company and the Guarantors, subject in each
case to clauses (i) and (ii) of this Section 9. Any party
entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made
against another party or parties under this Section 9, notify
such party or parties from whom contribution may be sought, but
the failure to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 9 or
otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its prior written
consent; provided that such written consent was not unreasonably
withheld.
SECTION 10.RULE 144A
The Company and the Guarantors hereby agree with each
Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 11.PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 12.SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering. In
any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer
the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided that such investment bankers
and managers must be reasonably satisfactory to the Company.
SECTION 13.MISCELLANEOUS
(a) Remedies. The Company and the Guarantors agree that
monetary damages (including the liquidated damages contemplated
hereby) would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate; provided that
the Liquidated Damages contemplated hereby shall be the exclusive
remedy for any such breach of Section 3 or 4 of this agreement.
(b) No Inconsistent Agreements. The Company and the
Guarantors shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
the holders of the Company's or any of the Guarantor's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the
Guarantors shall not take any action with respect to the Notes
that would materially and adversely affect the ability of the
Holders to Consummate the Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities
being tendered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company or any Guarantor:
Trico Marine Services, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Secretary
with a copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Xxxxxxx, L.L.P.
000 Xx. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to
the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the
need for an express assignment, the successors and assigns of
subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or
be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
[Signature page to follow]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Trico Marine Services, Inc.
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
Trico Marine Assets, Inc.
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
Trico Marine Operators, Inc.
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
Accepted and agreed to as of
the date first above written:
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxxx & Co. Inc.
by: Xxxxxxxxx & Company, Inc.
on behalf of each of the initial purchasers
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Managing Director
