EXHIBIT 99.3
EXECUTION VERSION
PRIVILEGED AND CONFIDENTIAL
PROVIDED AS PART OF SETTLEMENT DISCUSSIONS
SUBJECT TO RULE 408 OF THE FEDERAL RULES OF EVIDENCE
AND ALL BANKRUPTCY AND STATE LAW EQUIVALENTS
PLAN SUPPORT AGREEMENT REGARDING
TRICO MARINE SERVICES, INC., TRICO MARINE ASSETS, INC.,
AND TRICO MARINE OPERATORS, INC.
THIS PLAN SUPPORT AGREEMENT (as the same may be amended, modified,
or supplemented from time to time, this "Agreement"), is entered into as of
September 8, 2004, by and among (a) Trico Marine Services, Inc., Trico Marine
Assets, Inc., and Trico Marine Operators, Inc. (collectively, the "Company" or
"Trico"); and (b) the holders (or investment managers or advisers for the
beneficial owners) identified on Schedule 1 (the "Supporting Noteholders") of
the Trico Marine Services, Inc. $250 million 8 7/8% Senior Notes Due 2012 (the
"Senior Notes") (Trico together with the Supporting Noteholders, the "Parties"
and each individually, a "Party").
RECITALS
WHEREAS, Trico has determined in the exercise of its fiduciary duty
that it is necessary, appropriate and timely to undertake a restructuring of its
debt and equity interests and, to that end, is contemplating a restructuring of
its financial obligations (the "Financial Restructuring") through the
prosecution of jointly administered chapter 11 cases (collectively, the "Chapter
11 Cases") under chapter 11 of title 11 of the United States Code, 11 U.S.C.
Sections 101-1330 (as amended, the "Bankruptcy Code") which shall be filed in
the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court");
WHEREAS, the Supporting Noteholders hold in the aggregate, not less
than 66 2/3% of the outstanding principal amount of the Senior Notes;
WHEREAS, certain of the Supporting Noteholders are members of an ad
hoc group of certain holders of the Senior Notes (the "Prepetition Ad Hoc
Committee") that has engaged in good faith negotiations with Trico with the
objective of reaching an agreement regarding the principal terms of the
Financial Restructuring and has reached agreement in principle on the terms and
conditions set forth in the Chapter 11 Plan Term Sheet (the "Term Sheet"), a
copy of which is attached hereto as Exhibit A;
WHEREAS, certain of the Supporting Noteholders may agree from
time-to-time to enter into one or more confidentiality agreements with Trico for
the purposes of forming an ad hoc committee (the "Ad Hoc Committee") to make
various decisions pursuant to this Agreement;
WHEREAS, in order to implement the Financial Restructuring, Trico
intends to (i) prepare a disclosure statement that is consistent in all respects
with the Term Sheet and
otherwise in form and substance reasonably satisfactory to the holders of a
majority in amount of the Senior Notes (the "Disclosure Statement"), (ii)
prepare a plan of reorganization that is consistent in all respects with the
Term Sheet and otherwise in form and substance reasonably satisfactory to the
holders of a majority in amount of the Senior Notes (the "Plan"), (iii) solicit
the requisite votes in favor of the Plan, (iv) commence the Chapter 11 Cases
before the Bankruptcy Court, (v) on the date of commencement of the Chapter 11
Cases, submit the Plan and Disclosure Statement for approval of the Bankruptcy
Court, and (vi) use reasonable best efforts to have the Disclosure Statement
approved and the Plan confirmed by the Bankruptcy Court, in each case, as
expeditiously as practicable under the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure;
WHEREAS, each Supporting Noteholder holds or is the legal or
beneficial holder of, or the investment manager with discretionary authority
with respect to, the aggregate principal amount of Senior Notes set forth below
each such Supporting Noteholder's signature attached hereto and, in order to
facilitate the implementation of the Financial Restructuring, each of the
Supporting Noteholders is prepared to support, to the extent legally possible,
on the terms and subject to the conditions of this Agreement and applicable law,
if and when solicited to do so in accordance with applicable law, to vote (or,
in the case of managed or advised accounts, instruct its custodial agents to
vote) to accept the Plan in the Chapter 11 Cases; and
WHEREAS, Trico desires to obtain the commitment of the Supporting
Noteholders to support and vote for the Plan, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the Parties hereto hereby agrees as follows:
1. Support of Financial Restructuring. As long as this Agreement has
not been terminated pursuant to Section 6 hereof each Supporting Noteholder
severally agrees with each other Supporting Noteholder and with the Company
that, if the Company proposes the Plan, such Supporting Noteholder (i) will,
subject to receipt of a Disclosure Statement prepared pursuant to and satisfying
the requirements of chapter 11 of title 11 of the United States Code (the
"Bankruptcy Code") applicable to disclosure statements that contains information
concerning the Company and such Plan that is in all material respects consistent
with the information presently available and contains no information that is
materially inconsistent with such presently available information, and further
subject to its vote on the Plan being solicited in accordance with the
Bankruptcy Code (the "Solicitation Standards"), vote all of its claims against,
and equity interests in, the Company, whether now owned or hereafter acquired,
to the extent lawfully allowed to vote, to accept such Plan and otherwise
support and take all reasonable actions to facilitate, the proposal,
solicitation, confirmation, and consummation of such Plan; (ii) will not object
to confirmation of, or vote to reject, the Plan or otherwise commence any
proceeding to oppose or alter the Plan, the Disclosure Statement in respect of
the Plan, the solicitation of its acceptance of the Plan in accordance with the
Solicitation Standards or any other reorganization documents containing terms
and conditions consistent in all respects with the Term Sheet and this
Agreement; (iii) will vote against any restructuring workout or plan of
reorganization relating to Trico other than the Plan; and (iv) will not directly
or indirectly
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seek, solicit, support, encourage, vote for, consent to, or participate in the
negotiation or formulation of (x) any plan of reorganization, proposal, offer,
dissolution, winding up, liquidation, reorganization, merger, or restructuring
for the Company other than the Plan, (y) any disposition outside of the Plan of
all or any substantial portion of the assets of the Company, or (z) any other
action that is inconsistent with, or that would delay or obstruct the proposal
solicitation, confirmation, or consummation of, the Plan.
2. Proposal of Plan. The Company (a) represents to each Supporting
Noteholder individually that it is their present intention to promptly and
diligently (i) initiate the Chapter 11 Cases upon fulfillment of the conditions
precedent to the Company's obligations under this Agreement; (ii) prepare and
deliver the Plan, the Disclosure Statement in respect of the Plan, and other
necessary or appropriate reorganization documents containing terms and
conditions consistent with the Term Sheet; (iii) solicit acceptances of the Plan
by means of the Disclosure Statement in accordance with the Solicitation
Standards; and (iv) achieve the confirmation and consummation of such Plan; and
(b) agree, as long as this Agreement has not been terminated pursuant to Section
6 hereof, to use their reasonable best efforts, subject to their fiduciary duty
to equityholders and creditors, to promptly and diligently carry out, and oppose
any efforts to prevent, the actions described in section (a) of this sentence.
3. No Solicitation. Notwithstanding any other provision of this
Agreement, nothing in this Agreement is intended to be or constitute, and
nothing in this Agreement shall be deemed to be or constitute, a solicitation of
any vote or any agreement to vote for any plan of reorganization.
4. Restrictions on Transfer. As long as this Agreement has not been
terminated pursuant to Section 6 hereof and the confirmation and effective date
of the Plan have not occurred, no Supporting Noteholder may, directly or
indirectly, sell, assign, transfer, hypothecate, grant any option or right to
acquire, or otherwise dispose of (each, a "Transfer") all or any portion of any
claim against or equity interest in the Company or any interest therein, unless
the purchaser, assignee, or transferee (the "Transferee") agrees in writing in
the form attached hereto as Exhibit B (such writing a "Transferee
Acknowledgement") at the time of such Transfer to be bound by all of the terms
of this Agreement in its entirety, without revisions, as a Party hereto,
including without limitation Section 1 hereof. Upon execution of the Transferee
Acknowledgement, the Transferee shall be deemed to be a Supporting Noteholder.
Any Transfer not effected in accordance with the foregoing shall be deemed void
ab initio. In the event of a Transfer, the transferor shall, within three
business days after such Transfer, provide notice of such transfer to Trico
Marine Services, Inc., together with a copy of the Transferee Acknowledgement
and, if the transferor has transferred all of its claims subject to this
Agreement, then such transferor shall automatically be released from any further
obligations hereunder.
5. Further Acquisition of Senior Notes and Claims. This Agreement
shall in no way be construed to preclude any Supporting Noteholder from
acquiring additional Senior Notes. However, any such Senior Notes so acquired
shall automatically be deemed to be subject to all of the terms of this
Agreement.
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6. Termination. Upon the occurrence of any of the following events
or conditions:
(i) the final terms of the Plan have not been agreed to by the
Parties by October 11, 2004;
(ii) the solicitation pursuant to the Disclosure Statement and
Plan has not commenced on or before November 12, 2004 (the
"Solicitation Date");
(iii) an order confirming the Plan shall not have been entered
by the Bankruptcy Court on or before May 4, 2005;
(iv) the Company shall file with the Bankruptcy Court a plan
of reorganization on terms and conditions not materially different
from, or a disclosure statement not materially inconsistent with, the
Term Sheet or otherwise in form and substance not reasonably
satisfactory to all of the Supporting Noteholders;
(v) the Company shall file with the Bankruptcy Court a plan of
reorganization on terms and conditions materially different from, or a
disclosure statement materially inconsistent with, the Term Sheet or
otherwise in form and substance not reasonably satisfactory to all of
the Supporting Noteholders;
(vi) once filed, and prior to the confirmation of the Plan,
any or all of the Chapter 11 Cases shall have been converted to a case
or cases under chapter 7, to one or more liquidating chapter 11 cases,
or dismissed;
(vii) an examiner is appointed pursuant to section 1104(c)(1)
of the Bankruptcy Code with expanded powers to run the business of the
Company, or such examiner makes a finding of fraud, dishonesty, or
misconduct by any officer or director of Trico, or a trustee under
chapter 7 or chapter 11 of the Bankruptcy Code is appointed for the
Company in any of the Chapter 11 Cases;
(viii) there shall have occurred any material breach of this
Agreement by the Company or any representation or warranty made by the
Company in this Agreement shall be incorrect in any material respect;
(ix) any court shall enter a final nonappealable judgment or
order declaring this Agreement to be unenforceable;
(x) the Company shall withdraw the Plan or publicly announce
its intention not to support the Plan;
(xi) the Company has failed to satisfy the conditions
precedent specified in the side letter dated September 8, 2004 by the
Solicitation Date,
then:
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all obligations of the Parties under this Agreement shall automatically
terminate and be of no further force or effect; provided, however, that upon the
occurrence of the event described in clause (v) such termination shall only
occur five (5) days after the filing of the Plan or Disclosure Statement, and
provided such event has not been waived by all of the Supporting Noteholders;
and provided, further, that upon the occurrence of the event described in clause
(iv) such termination shall only occur ten (10) days after the filing of the
Plan or Disclosure Statement, and provided such event has not been waived by
two-thirds in amount of the Ad Hoc Committee members, or if no Ad Hoc Committee
then exists, two-thirds in amount of the Supporting Noteholders. No Party shall
have the right to terminate this Agreement upon the occurrence of any of the
events and conditions described in clause (i), (ii), (iii), (viii) or (xi)
unless such Party has first given written notice thereof to each of the other
Parties hereto specifically identifying the basis upon which such Party is
exercising its right to terminate, and the event or condition giving rise to
such right is not cured within ten (10) days of such written notice; and,
provided, further, that such event or condition shall be deemed cured if the
applicable requirement contained in such clause is satisfied within such ten
(10) day period regardless of any date specified in such claims. For the
avoidance of doubt, only a majority in amount of the Ad Hoc Committee members,
or if no Ad Hoc Committee then exists, a majority in amount of the Supporting
Noteholders shall have the right to terminate this Agreement under clauses (ii),
(iii), (viii) or (xi) referenced above. During the period following the
commencement of the Chapter 11 Cases but prior to the scheduling, by the
Bankruptcy Court, of the confirmation hearing, enforcement of this Agreement as
to the Company shall be limited by applicable bankruptcy law. Termination in
accordance with this paragraph shall not affect any Party's remedies as a result
of any breach by any other Party. Notwithstanding anything to the contrary set
forth in this Agreement, this Agreement shall terminate on May 4, 2005.
7. Conditions to Effectiveness of this Agreement. This Agreement
shall not become effective until such time as each of the following conditions
have been satisfied:
(a) The receipt by Trico of the authorized signatures to this
Agreement by at least two Supporting Noteholders holding, in the
aggregate, not less than 66 2/3% of the outstanding principal amount of
the Senior Notes; and
(b) Execution of this Agreement by the Company.
8. Public Disclosures. Prior to the issuance of any public
disclosures regarding the Financial Restructuring, Trico shall consult with the
Ad Hoc Committee, or if no such Ad Hoc Committee then exists, the Supporting
Noteholders (or so many of the Supporting Noteholders that are willing to
receive restricted information at such time), as to the form and substance of
such public disclosures, provided that at all times the Company shall be solely
responsible for each public disclosure made by it. Without limiting the
generality of the foregoing, unless required by lawful subpoena issued by a
court of competent jurisdiction, Trico shall not, and shall cause each of its
direct and indirect subsidiaries not to, disclose (i) any Supporting
Noteholder's identity or (ii) the amount of such holder's holdings of Senior
Notes, without the prior written consent of such Supporting Noteholder in each
case; and, if such announcement or disclosure is so required, Trico shall afford
the Supporting Noteholders a reasonable opportunity to review and comment upon
any such announcement or disclosure prior to the applicable announcement or
disclosure.
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9. Fiduciary Duties. Notwithstanding anything to the contrary
herein, nothing in this Agreement shall require Trico or any directors or
officers of Trico (in such person's capacity as a director or officer of Trico)
to take any action, or to refrain from taking any action, to the extent required
to comply with its or their fiduciary obligations under applicable law. Nothing
herein will limit or affect, or give rise to any liability, to the extent
required for the discharge of the fiduciary obligations described in this
Section 9.
10. Impact of Appointment to Creditors' Committee. Trico agrees to
use its reasonable best efforts, if requested by any Supporting Noteholder, to
support such Supporting Noteholder's appointment to any official unsecured
creditors' committee ("Creditors' Committee") formed pursuant to 11 U.S.C.
Section 1102 in the Chapter 11 Cases. Notwithstanding anything herein to the
contrary, if any Supporting Noteholder is appointed to and serves on the
Creditors' Committee in the Chapter 11 Cases, the terms of this Agreement shall
not be construed so as to limit such Supporting Noteholder's exercise (in its
sole discretion) of its fiduciary duties to any person arising from its service
on such Creditors' Committee, and any such exercise (in the sole discretion of
such Supporting Noteholder) of such fiduciary duties shall not be deemed to
constitute a breach of the terms of this Agreement.
11. Notices. All notices, requests, elections, and demands under or
in connection with this Agreement shall be in writing and shall be delivered by
hand, sent by recognized overnight courier, or sent by facsimile or similar
electronic means to the Party as set forth under its signature hereto, or to
such other address or facsimile number as such Party shall provide to all other
Parties hereto in writing, and shall be deemed sent or given hereunder, in the
case of personal delivery or delivery by recognized overnight courier, on the
date of actual delivery, and in the case of transmission by facsimile or similar
electronic means, on the date of actual transmission.
12. Entire Agreement; Modification; Waiver. This Agreement and the
Plan (the provisions of which are incorporated herein) constitute the entire
agreement among the Parties as to the subject matter hereof and supersede all
prior and contemporaneous agreements, representations, warranties, and
understandings of the Parties, whether oral, written, or implied, as to the
subject matter hereof. Notwithstanding anything to the contrary herein, no
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing by all Parties. No waiver of any of the provisions of this
Agreement shall be deemed or constitute a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the Party making the waiver.
13. No Third-Party Beneficiaries. Nothing contained in this
Agreement is intended to confer any rights or remedies under or by reason of
this Agreement on any person or entity other than the Parties hereto, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third party to any Party to this Agreement, nor shall any
provision give any third party any right of subrogation or action over or
against any Party to this Agreement.
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14. Successors and Assigns. This Agreement shall be binding upon,
and shall inure to the benefit of, each Party hereto and their respective legal
representatives, successors, and assigns.
15. Further Documents. Each Party hereto agrees to execute any and
all documents, and to do and perform any and all acts and things, reasonably
necessary or proper to effectuate or further evidence the terms and provisions
of this Agreement and agrees to negotiate in good faith the definitive documents
relating to this Agreement and the Plan, provided that this shall not require
Supporting Noteholders to incur any costs, fees or expenses unless paid (or
reimbursed) by the Company.
16. Representations and Warranties:
(a) Representations and Warranties of the Supporting Noteholders.
Each Supporting Noteholder hereto severally and not jointly, as to itself
only, represents and warrants to each of the Parties hereto that, as of
the date of this Agreement, it is the legal or beneficial holder of, or
the investment manager with discretionary authority with respect to, the
principal amount of Senior Notes set forth below its name on the signature
page hereto.
(b) Representations and Warranties of Trico. Each of the Trico
entities represents and warrants to each of the Supporting Noteholders
that the following statements are true, correct, and complete as of the
date hereof:
(i) Trico has due authority to enter into, to perform its
obligations under, and to consummate the transactions contemplated by,
this Agreement; and
(ii) There are no actions, suits, claims, proceedings or, to
its knowledge, investigations pending or, to its knowledge, threatened
against any of the Trico entities or any of its current or former
directors or officers that would give rise to a claim for indemnification
against any of the Trico entities by any of such directors or officers
under applicable law or the certificate of incorporation and/or by-laws of
any of the Trico entities, except as set forth on Schedule 16(b)(ii); and
(iii) The information provided by Trico to the Supporting
Noteholders in connection with the Financial Restructuring did not, when
provided, contain any untrue statement of a material fact nor did it fail
to state any fact necessary in order to make such information not
materially misleading.
(c) Representations and Warranties of Trico and the Supporting
Noteholders. Each of the Parties, hereto severally and not jointly, and as
to itself only, represents and warrants to the other Parties that the
following statements, as applicable to it, are true, correct and complete
as of the date hereof:
(i) The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary corporate or similar action on its part, subject, in the case of
performance by the Company, to required Bankruptcy Court approvals related
to the solicitation, confirmation, and consummation
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of the Plan, and that the person executing this Agreement on behalf of
such Party has been duly-authorized to execute this Agreement on behalf of
and bind such Party;
(ii) This Agreement is the legally valid and binding
obligation of it, enforceable against it in accordance with its terms,
subject in the case of the Company, to required Bankruptcy Court approvals
related to the solicitation, confirmation, and consummation of the Plan;
(iii) Subject in the case of the Company to required
Bankruptcy Court approvals related to the solicitation, confirmation, and
consummation of a Plan, the execution, delivery and performance by it of
this Agreement do not and shall not (i) violate any provision of law, rule
or regulation applicable to it or any of its affiliates or its certificate
of incorporation or bylaws, (ii) conflict with, result in the breach of or
constitute (with due notice or lapse of time or both) a default under any
material contractual obligations to which it or any of its affiliates is a
party or under its certificate of incorporation or bylaws, or (iii)
require the consent of any third party which has not been obtained.
(iv) It has entered into this Agreement after receiving the
advice of counsel regarding the matters contemplated hereby.
(d) Except as expressly set forth in this Agreement, none of the
Parties hereto makes any representation or warranty, written or oral,
express or implied.
17. Severability. If any portion of this Agreement shall be held to
be invalid or unenforceable, then that portion shall be deemed modified (only to
the extent necessary and in a manner consistent with the remainder of this
Agreement) so as to be valid and enforceable, or if such modification is not
reasonably feasible, shall be deemed to have been severed out of this Agreement,
and the Parties acknowledge that the balance of this Agreement shall in any
event be valid and enforceable unless the effect shall be to materially alter
the terms and conditions of this Agreement.
18. Headings. The descriptive headings of the several sections of
this Agreement are inserted for convenience of reference only and do not
constitute a part of this Agreement.
19. Specific Performance. This Agreement, including without
limitation the Parties' agreement herein to support the Plan and to facilitate
its confirmation, is intended as a binding commitment enforceable in accordance
with its terms. It is understood and agreed by each of the Parties hereto that
money damages would not be a sufficient remedy for any breach of this Agreement
by any Party and each non-breaching Party shall be entitled to specific
performance and injunctive or other equitable relief as a remedy of any such
breach.
20. Interpretation. This Agreement is the product of negotiations
among the Parties, and in the enforcement or interpretation hereof, is to be
interpreted in a neutral manner, and any presumption with regard to
interpretation for or against any Party by reason of that Party having drafted
or caused to be drafted this Agreement, or any portion hereof, shall not be
effective in regard to the interpretation hereof.
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21. Consideration. It is hereby acknowledged by the Parties that no
payment or additional consideration shall be due or paid to the Supporting
Noteholders for their agreement to vote in accordance with and otherwise comply
with the terms and conditions of this Agreement other than the obligations of
the other Parties hereunder.
22. Rule of Interpretation. Notwithstanding anything contained
herein to the contrary, it is the intent of the Parties that all references to
votes or voting in this Agreement be interpreted to include (i) votes or voting
on a plan of reorganization under the Bankruptcy Code and (ii) all means of
expressing agreement with, or rejection of, as the case may be, a restructuring
or reorganization transaction that is not implemented under the Bankruptcy Code.
23. Counterparts; Fax Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page by facsimile transmission shall be
effective as delivery of a manually executed counterpart.
24. Governing Law. Except to the extent that the Bankruptcy Code or
Bankruptcy Rules are applicable, the rights and obligations arising under this
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of New York applicable to contracts made and performed
entirely within such state.
25. Jurisdiction. By its execution and delivery of this Agreement,
each of the Parties hereto irrevocably and unconditionally agrees that any legal
action, suit, or proceeding against it with respect to any matter under or
arising out of or in connection with this Agreement or for recognition or
enforcement (including specific performance) of any judgment rendered in any
such action, suit or proceeding, shall be brought in the Bankruptcy Court or
prior to the commencement of the Chapter 11 Cases, in the federal district court
or appropriate state court located within the State of New York. By its
execution and delivery of this Agreement, each of the Parties hereto irrevocably
accepts and submits itself to the jurisdiction of the Bankruptcy Court and the
federal and state courts located within the State of New York for such purposes
and agrees that any such legal action, suit, or proceeding shall constitute a
core proceeding within the meaning of 28 U.S.C. section 157(b)(2).
26. Expenses.
(a) In any action or proceeding brought by a Party hereto against
any other Party hereto to enforce any provision of this Agreement, or to seek
damages for a breach of any provision hereof, or where any provision hereof is
validly asserted as a defense, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs from the other party in addition to any
other available remedy.
(b) The Company shall pay or procure the payment of, before the
commencement of the Chapter 11 Cases, all prepetition fees and expenses of the
Supporting Noteholders, the Prepetition Ad Hoc Committee, Ad Hoc Committee and
the Indenture Trustee for the Senior Notes (the "Indenture Trustee") and of
their respective legal and financial advisors relating to the Financial
Restructuring, outstanding at the time of such commencement and to undertake in
the Plan to pay, or procure the payment of, upon the consummation of the Plan
all postpetition fees
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and expenses of the Supporting Noteholders, the Prepetition Ad Hoc Committee, Ad
Hoc Committee and the Indenture Trustee and of their respective legal and
financial advisors relating to the Chapter 11 Cases. For the avoidance of doubt,
nothing in this Section 26(b) shall require the Company to pay the fees and
expenses of any advisor retained by a Supporting Noteholder who is not also an
advisor to the Prepetition Ad Hoc Committee and/or the Ad Hoc Committee.
27. Effectiveness of the Agreement. This Agreement shall be
effective on the date it has been signed by each of the Supporting Noteholders
and each of the Trico entities. With respect to any Party who becomes a Party
hereto after the date hereof, including Transferees pursuant to Section 4
hereof, this Agreement shall be effective as of the date such signatory executes
and delivers this Agreement.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officers as of the
date first written above.
TRICO MARINE SERVICES, INC.
TRICO MARINE ASSETS, INC.
TRICO MARINE OPERATORS, INC.
By: ________________________________
Name:
Title:
Address:
Phone:
Facsimile:
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SCHEDULE 1
SUPPORTING NOTEHOLDERS
1. AIG Global Investment Corp., as Investment Adviser
2. Barclays Bank PLC
3. Cargill Financial Services International, Inc.
4. Xxxxxx Investments
5. Xxxxxxx Xxxxx Xxxx Fund, Inc. - High Income Portfolio
6. Xxxxxxx Xxxxx Global Investment Series: Income Strategies Portfolio
7. Master U.S. High Yield Trust
8. Corporate High Yield Fund, Inc.
9. Corporate High Yield Fund III, Inc.
10. Corporate High Yield Fund V, Inc.
11. Corporate High Yield Fund VI, Inc.
12. Debt Strategies Fund, Inc.
13. Floating Rate Income Strategies Fund, Inc.
14. Xxxxxxx Xxxxx International Investment Funds - U.S. High Yield Bond Fund
15. Xxxxxxx Xxxxx World Income Fund, Inc.
16. Xxxxx Credit Fund, Ltd.
17. Xxxxxxx Capital Management, L.P.
SCHEDULE 16(b)(ii)
XXXX XXXXXXXX V. TRICO MARINE SERVICES, INC., XXXXXX X. XXXXXXX, AND
XXXXXX X. XXXXXX, Civil Action No. 04-1565, was filed in the United States
District Court for the Eastern District of Louisiana alleging violations of
Sections 10(b) and 20(a) of the Securities Act of 1934 against the Company, its
Chief Executive OfficeR and former Chairman of the Board. Plaintiff seeks to
certify a class consisting of purchasers of the Company's common stock from May
6, 2003 through May 10, 2004, and requests an unspecified amount of compensatory
damages, interest and costs.
EXHIBIT A
TERM SHEET
EXHIBIT B
TRANSFEREE ACKNOWLEDGMENT
EXHIBIT B
[TO BE INSERTED INTO LETTERHEAD OF TRANSFEROR]
_____________________ ___, 2004
_________________________ (the "Transferee")
Re: Transferee Acknowledgment
Ladies and Gentlemen:
This letter (this "Letter") is in reference to paragraph 4 of that certain Plan
Support Agreement (the "PSA") entered into as of September 8, 2004, among Trico
Marine Services, Inc., Trico Marine Assets, Inc., and Trico Marine Operators,
Inc. (collectively, the "Company" or "Trico") and the Supporting Noteholders.
All capitalized terms used but not defined herein have the meanings given to
them in the PSA.
Paragraph 4 of the PSA provides, in relevant part, as follows:
As long as this Agreement has not been terminated pursuant to Section 6
hereof and the confirmation and effective date of the Plan have not
occurred, no Supporting Noteholder may, directly or indirectly sell,
assign, transfer, hypothecate, grant any option or right to acquire, or
otherwise dispose of (each, a "Transfer") all or any portion of any claim
against or equity interest in the Company or any interest therein, unless
the purchaser, assignee, or transferee (the "Transferee") agrees in
writing in the form attached hereto as Exhibit B (such writing a
"Transferee Acknowledgment") at the time of such Transfer to be bound by
all of the terms of this Agreement in its entirety, without revisions, as
a Party hereto, including without limitation Section 1 hereof. Upon
execution of the Transferee Acknowledgment, the Transferee shall be deemed
to be a Supporting Noteholder. Any Transfer not effected in accordance
with the foregoing shall be deemed void ab initio. In the event of a
Transfer, the transferor shall, within three business days after such
Transfer, provide notice of such transfer to Trico Marine Services, Inc.,
together with a copy of the Transferee Acknowledgment and, if the
transferor has transferred all of its claims subject to this Agreement,
then such transferor shall automatically be released from any further
obligations hereunder.
As of ____________ ___, 2004, we, the undersigned have agreed to Transfer the
following principal amount of Senior Notes to the countersigning party, as
Transferee:
ISSUANCE ISSUE AMOUNT MATURITY PRINCIPAL AMOUNT TRANSFERRED
------------------ ------------ ------------ ----------------------------
8.875% Senior Notes $250 million May 15, 2012 $___________________________
By your countersignature in the space provided below, you, as Transferee,
represent and warrant that you have received the PSA (attached as Exhibit A) and
the Term Sheet (attached hereto as Exhibit B).
Please indicate your agreement to be bound by (a) the PSA as a Supporting
Noteholder and (b) the terms and conditions of this Letter, in each case in
their entirety without revisions (including with respect to any and all claims
or interests you already may hold against or in Trico prior to the Transfer of
the interests described above), by countersigning below and returning a copy of
this Letter to the Transferor. This Letter may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Letter. Delivery of an executed signature page of
this Letter by facsimile shall be effective as delivery of a manually executed
signature page of this Letter. Upon receipt of your countersignature to this
Letter, which is a precondition to any Transfer of the interests described
above, this Letter shall be provided to Trico Marine Services, Inc. pursuant to
paragraph 4 of the PSA.
Very truly yours,
[INSERT NAME OF TRANSFEROR]
ACCEPTED AND AGREED
[INSERT NAME OF TRANSFEREE]
Exhibit A
Plan Support Agreement
Exhibit B
Term Sheet
EXHIBIT A TO PLAN SUPPORT AGREEMENT
FINAL DRAFT Confidential
September 8, 2004
TRICO MARINE SERVICES, INC.
DRAFT PROPOSED TERMS OF RESTRUCTURING
This term sheet, proposed by Trico Marine Services, Inc. ("TMAR"), sets forth a
brief summary of the principal terms of a proposed restructuring (the
"Restructuring") of the $250 million 8-7/8% Senior Notes due 2012 (the "Senior
Notes") issued by TMAR. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Indenture dated as of May 31, 2002
among TMAR, the Guarantors (as defined therein), and JPMorgan Chase Bank as
Trustee. As used herein, TMAR, the Guarantors, and all domestic remaining
subsidiaries of TMAR are referred to as "Trico." This term sheet does not
represent a commitment, obligation or understanding on the part of Trico, the
holders of the Senior Notes (the "Senior Noteholders"), or the Trustee to, as
applicable, (a) amend, waive or otherwise modify (including without limitation
by way of restructuring, refinancing, termination, cancellation or exchange) any
agreement, including without limitation the Senior Notes, or any term or
provision thereof or of any agreement, instrument or document related thereto,
(b) forbear from exercising remedies with respect thereto, (c) agree with, admit
or concede the validity or enforceability of any claim by the Senior Noteholders
or (d) take action, or refrain from taking action, with respect to the
foregoing. No party shall be so obligated unless and until all internal credit,
board and other necessary approvals, as applicable, are sought and obtained, all
definitive documentation is negotiated and executed and all conditions precedent
are satisfied or waived.
The terms discussed herein are an integrated offer, are not divisible except as
described herein, and are subject to the terms and conditions hereof. This term
sheet is provided in confidence and may be distributed only with the express
written consent of TMAR and counsel to the Ad Hoc Committee of Senior
Noteholders (the "Ad Hoc Committee"). Certain elements of the proposal
concerning the implementation of the Restructuring may be modified as a
consequence of the parties' tax review. This term sheet does not include a
description of all of the terms, conditions and other provisions that are to be
contained in the definitive documentation governing such matters, which remain
subject to discussion and negotiation to the extent not inconsistent with the
specific matters set forth herein. This term sheet is proffered in the nature of
a settlement proposal in furtherance of settlement discussions, and is intended
to be entitled to the protections of rule 408 of the Federal Rules of Evidence
and any other applicable statutes or doctrines protecting the use or disclosure
of confidential information and information exchanged in the context of
settlement discussions.
THIS TERM SHEET IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OF TRICO OR A
SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN OF REORGANIZATION. SUCH OFFER
OR SOLICITATION WILL ONLY BE MADE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES
LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE.
TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
I. COMPANIES AFFECTED: The Restructuring will impact TMAR, Trico Marine Assets, Inc.
("TMA") and Trico Marine Operators, Inc. ("TMO").
II. BEAR XXXXXXX CREDIT FACILITY: Except as otherwise provided herein, all of the respective
obligations of TMAR, TMO and TMA pursuant to the Bear Xxxxxxx
Credit Facility will be unimpaired and/or reinstated in full.
Depending on the form of Restructuring, certain consents,
waivers, amendments or modifications may be required from a
requisite number of lenders under the Bear Xxxxxxx Credit
Facility.
III. NOK 150 MILLION TERM LOAN Except as otherwise provided herein, the NOK 150 Million Term
Loan will be unimpaired/unaffected by the Restructuring.
Depending on the form of Restructuring, certain consents,
waivers, amendments or modifications may be required from a
requisite number of lenders under the NOK 150 Million Term Loan.
IV. NOK 800 MILLION REVOLVING FACILITY The NOK 800 Million Revolving Facility will be
unimpaired/unaffected by the Restructuring. Depending on the
form of Restructuring, certain consents, waivers, amendments or
modifications may be required from a requisite number of
lenders under the NOK 800 Million Revolving Facility.
V. GECC MASTER BAREBOAT CHARTER All of the respective obligations of TMAR, TMO and TMA pursuant
to the GECC Master Bareboat Charter Agreement will be
unimpaired and/or reinstated in full. Depending on the form of
Restructuring, certain consents, waivers, amendments or
modifications may be required from GECC.
VI. MARAD 2006 NOTES All of the respective obligations of TMAR, TMO and TMA pursuant
to the MARAD 2006 Notes Indenture and related documentation
will be unimpaired and/or reinstated in full. Depending on the
form of Restructuring, certain consents, waivers, amendments or
modifications may be required from MARAD.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
VII. MARAD 2014 NOTES All of the respective obligations of TMAR, TMO and TMA pursuant
to the MARAD 2014 Notes Indenture and related documentation
will be unimpaired and/or reinstated in full. Depending on the
form of Restructuring, certain consents, waivers, amendments or
modifications may be required from MARAD.
VIII. TRADE CREDIT AND OTHER GENERAL Claims not to exceed an amount to be agreed between TMAR and
UNSECURED CLAIMS: Xxxxxxxx in the aggregate resulting from all credit extended to
TMAR and its subsidiaries by its vendors and suppliers,
including operating leases, will be unimpaired and/or assumed
in full. Other general unsecured claims against TMAR and its
subsidiaries not to exceed an amount to be agreed between TMAR
and Xxxxxxxx in the aggregate will be unimpaired and will be
paid in the ordinary course of business.
IX. FEDERAL, STATE AND LOCAL TAX The claims of Federal, State and Local taxing authorities
CLAIMS: against TMAR and its subsidiaries not to exceed an amount to be
agreed between TMAR and Xxxxxxxx in the aggregate shall be paid
in full in cash when due or as permitted by section 1129(a)(9)
of the Bankruptcy Code.
X. OTHER PRIORITY CLAIMS: Other priority claims against TMAR and its subsidiaries not to
exceed an amount to be agreed between TMAR and Xxxxxxxx in the
aggregate shall be paid in full in cash upon consummation of
the Restructuring, or upon such other terms as TMAR and the
beneficiary of such payment may agree.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
XI. SENIOR NOTE CLAIMS: On the effective date of the relevant plan of reorganization
(the "Effective Date"), all of the Senior Notes shall be
cancelled and in exchange therefore, each Senior Noteholder
shall receive a pro rata portion of newly authorized and issued
TMAR common stock (the "New TMAR Stock") representing 100% of
the common stock ownership of TMAR as of the Effective Date.
All New TMAR Stock allocations to the Senior Noteholders are
subject to dilution from the exercise of (i) options on the
re-capitalized equity to be reserved for distribution pursuant
to the TMAR LTIP, as described below and (ii) the warrants to
be provided to the existing holders of equity interests in
TMAR. TMAR will take all reasonably necessary actions to
permit the New TMAR Stock to be traded on at least the NASDAQ
OTC Bulletin Board market. Following the Effective Date, TMAR
will use its reasonable best efforts to obtain listing of the
New TMAR Stock on the NASDAQ Small Cap Market. On the
Effective Date, TMAR will enter into a Registration Rights
Agreement in form, scope and substance reasonably satisfactory
to the Ad Hoc Committee providing the Senior Noteholders with
customary demand and piggy-back registration rights with
respect to the New TMAR Stock.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
XII. EQUITY SECURITY HOLDERS: If the holders of existing TMAR common stock as a class approve
the plan of reorganization described in this Term Sheet, then
in exchange for the TMAR common stock that they presently hold,
holders of existing TMAR common stock will receive (i)
warrants, exercisable for a period of five years after the
Effective Date for 5% of the pro forma common equity of
reorganized TMAR (subject to dilution from the exercise of
options on the re-capitalized equity to be reserved for
distribution pursuant to the TMAR LTIP, as described below),
with a per share exercise price calculated on the basis of the
value of TMAR's equity being $187.5 million; and (ii)
warrants, exercisable for a period of three years after the
Effective Date for 5% of the pro forma common equity of
reorganized TMAR (subject to dilution from the exercise of
options on the re-capitalized equity to be reserved for
distribution pursuant to the TMAR LTIP, as described below),
with an exercise price calculated on the basis of TMAR's equity
being $250 million.
For the avoidance of doubt, the pro forma ownership of New TMAR Stock
assuming the grant and exercise of all options under the LTIP and the
exercise of all warrants shall be: former Senior Noteholders - 83.25%;
LTIP option grantees - 7.5%; warrantholders - 9.25%.
XIII. SECTION 510(b) CLAIMS All securities litigation claims and other claims that come
within the scope of section 510(b) of the Bankruptcy Code shall
be treated in accordance therewith.
XIV. TAX STRUCTURE: PwC, K&E, Lazard, and Trico are reviewing tax issues and potential tax
structures and will consult with counsel to the Ad Hoc Committee on
tax issues and tax structures.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
XV. MANAGEMENT INCENTIVE: On the Effective Date, a new long-term stock incentive program
(the "TMAR LTIP") will be approved and implemented. The TMAR
LTIP will provide options to purchase up to 7.5% of the New
TMAR Stock, on a fully diluted basis. The options shall be
granted in accordance with the allocations set forth on Exhibit
A, attached hereto, and incorporated herein by reference, and
shall be subject to the vesting schedule also set forth on
Exhibit A. All options will be exercisable for a period of
seven years after issuance. The per share exercise price of
all options granted at the Effective Date will be the per share
value of the New TMAR Stock at the Effective Date.
XVI. CORPORATE GOVERNANCE: As of the Effective Date, TMAR shall have a seven person Board
of Directors consisting of TMAR's current Chairman and its
chief executive officer, and five nominees of the Senior
Noteholders selected by a majority in amount of those Senior
Noteholders willing to go restricted at the appropriate time
for the purpose of selecting such five nominees, or, failing
such restricted Senior Noteholders, a majority in amount of the
Senior Noteholders.
On the Effective Date, TMAR will implement revised Bylaws and
Certificate of Incorporation which shall be in form, scope and
substance satisfactory to the Ad Hoc Committee.
XVII. EXIT FACILITY: Trico will seek an exit facility to ensure adequate liquidity for the
operation of its businesses and will consult with the Ad Hoc Committee
in connection with obtaining and implementing such exit facility.
XVIII. RELEASES: The plan of reorganization shall include a full discharge and
release of liability in favor of (a) TMAR and each of its
subsidiaries, (b) the Senior Noteholders, and (c) each of their
respective principals, employees, agents, officers, directors,
and professionals from: (i) any and all claims and causes of
action arising prior to the Effective Date and (ii) any and all
claims arising from the actions taken or not taken in good
faith in connection with the Restructuring.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
XIX. CONDITIONS: The Restructuring proposal set forth herein shall be subject to, among other
things:
i. the receipt of all required legal and regulatory approvals;
ii. the approval of the Board of Directors of the TMAR, TMA and TMO;
iii. fulfillment of the conditions precedent specified in the side letter
dated September 8, 2004, between TMAR and the Ad Hoc Committee
concerning required amendments to the credit facilities and exit
financing;
iv. the negotiation and execution of definitive documentation reasonably
acceptable to the signatories of the supporting agreements for the
Restructuring.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
XX. PLAN SUPPORT AGREEMENT: Upon agreement between Trico and the Senior
Noteholders regarding the terms of the Restructuring,
Trico and a majority of the Senior Noteholders will
enter into one or more formal agreements (the "Plan
Support Agreements"). The signatories to the Plan
Support Agreements, would among other things, support
the Restructuring, and (a) subject to receipt of an
approved disclosure statement satisfying the
requirements the Bankruptcy Code applicable to
disclosure statements that contains information
concerning Trico and a Plan that conforms with the
terms of the Restructuring (the "Plan"), vote all of
its claims against, and equity interests in, TMAR,
TMA and TMO to accept such Plan and otherwise support
and take all reasonable actions to facilitate, the
proposal, solicitation, confirmation, and
consummation of such Plan; (b) not object to
confirmation of, or vote to reject, the Plan or
otherwise commence any proceeding to oppose or alter
the Plan, the disclosure statement in respect of the
Plan, the solicitation of its acceptance of the Plan
or any other reorganization documents containing
terms and conditions consistent in all material
respects with the Term Sheet; (c) vote against any
restructuring workout or plan of reorganization
relating to Trico other than the Plan; and (d) not
directly or indirectly seek, solicit, support,
encourage, vote for, consent to, or participate in
the negotiation or formulation of (x) any plan of
reorganization, proposal, offer, dissolution, winding
up, liquidation, reorganization, merger, or
restructuring for any of Trico other than the Plan,
(y) any disposition outside of the Plan of all or any
substantial portion of the assets of Trico or any of
its subsidiaries, or (z) any other action that is
inconsistent with, or that would delay or obstruct
the proposal solicitation, confirmation, or
consummation of, the Plan. The signatories to the
Plan Support Agreement would, among other things,
support the Plan and the Restructuring and in the
event that any signatory sells, assigns or otherwise
conveys its claims (a "Sale Transaction"), it would
condition said Sale Transaction upon the transferee's
assumption of the Plan Support Agreement.
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TRICO MARINE SERVICES, INC.
FINAL DRAFT Confidential
XXI. PLAN SUPPORT AGREEMENT: It shall be a condition precedent to Trico taking
action to implement the Restructuring that the
holders of a minimum of 66 2/3% of the currently
outstanding Senior Notes have each executed and
delivered to Trico Plan Support Agreements.
XXII. IMPLEMENTATION The Restructuring will be effectuated through a mutually
acceptable pre-packaged or pre-arranged Chapter 11 plan of
reorganization of Trico, the Guarantors, and, only to the
extent necessary, certain or all of Trico's remaining domestic
subsidiaries. The definitive documentation shall be in form and
substance reasonably satisfactory to Trico and the Ad Hoc
Committee and may not contain terms which vary materially from
the terms described herein. For the avoidance of doubt, none of
Trico's foreign subsidiaries or affiliates shall be subject to
any Chapter 11 filing, bankruptcy proceeding or any other
similar reorganization or insolvency proceeding existing under
the laws of the jurisdiction of its organization or principle
place of business.
XXIII. FEES AND EXPENSES In addition to paying the expenses of its own legal and
financial advisors, Trico will continue to pay the reasonable
fees and expenses of Xxxxxxx XxXxxxxxx LLP and Xxxxxxxx Xxxxx
Xxxxxx & Xxxxx through the Effective Date, in accordance with
the terms of the existing fee agreements. Trico also agrees to
pay the reasonable fees and expenses of local counsel (if
required) to the Ad Hoc Committee through the Effective Date.
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