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EXHIBIT 4.3
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AS AMENDED OR UNDER THE SECURITIES LAWS OF ANY STATE AND IS BEING OFFERED AND
SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT
AND SUCH LAWS. THIS PROMISSORY NOTE MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
SECURED PROMISSORY NOTE.
$3,000,000 _____________, 1997
TRANSCOASTAL MARINE SERVICES, INC., a Delaware corporation (the
"Maker"), for value received, promises to pay the XXXXXX X. XXX, XX.
GRANDCHILDREN'S TRUST NO. 1 (the "Holder"), the sum of Three Million and No/100
Dollars ($3,000,000), in lawful money of the United States of America, at the
interest rate and on the terms herein specified.
Section 1. Payment.
1.1 Interest Rate. The unpaid principal balance from time to
time outstanding hereunder shall bear interest from and after the date hereof
until maturity at a fixed rate equal to EIGHT PERCENT (8%) per annum. Interest
on this Note shall be computed on the basis of a 365-day (or 366-day, as the
case may be) year for the actual number of days elapsed.
1.2 Due Dates. This Note shall be due and payable as follows:
(a) The outstanding principal balance of this Note and the
accrued interest thereon shall be due and payable in equal monthly installments
of principal in the amount of TWENTY FIVE THOUSAND AND 00/100 DOLLARS
($25,000.00) each, plus interest accrued to date of payment, the first of which
shall be due and payable on _______________, 1997, and the successive
installments shall be due and payable on the same day of each month thereafter
until all outstanding principal and accrued but unpaid interest thereon shall
be paid in full.
(b) All past due principal and interest on this Note shall
bear interest from the maturity date thereof until the date of payment at the
Maximum Rate. Unless changed in accordance with law, the "Maximum Rate" shall
mean the maximum nonusurious rate of interest allowed to be charged by Holder
to Maker by applicable law, as such applicable law or rate of interest is in
effect.
1.3 Prepayment. Maker at its option may prepay all or any
portion of the outstanding principal amount of this Note at any time without
premium, such prepayment of
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principal to be accompanied by payment of interest accrued and unpaid on the
principal amount being prepaid.
Section 2. Events of Default.
It is expressly agreed and understood that time is of the essence
concerning this Note, and that Maker shall be in default upon the happening of
any of the following events or conditions herein called an "Event of Default":
2.1 Payment. If default shall be made in any payment of the
principal or interest on this Note, as the same shall become due and payable,
and such default is not cured within ten (10) days after notice by Holder to
Maker; or
2.2 Certain Actions. Should Maker commit an act of bankruptcy,
make an assignment for the benefit of creditors, or authorize the filing of a
voluntary petition in bankruptcy, or should a receiver of any of the property
of Maker be appointed, and such proceedings have not been stayed within 90
days; and
2.3 Bankruptcy. Should involuntary bankruptcy proceedings be
filed against Maker and such filing is not set aside within 90 days.
2.4 Acceleration. Except as set forth above in paragraph 2.1,
in the event any Event of Default shall occur and remain uncured after any
applicable cure period, Holder may, at its option, declare the entirety of this
Note, together with all accrued but unpaid interest, immediately due and
payable. Failure to exercise this option shall not constitute a waiver on the
part of Holder to exercise said option at any other time.
Section 3. Waiver of Grace. Maker expressly and specifically waives
grace, presentment for payment, demand for payment, notice of intent to
accelerate and notice of acceleration, notice of dishonor, protest and notice
of protest, notice of nonpayment, and any and all other notices, the filing of
suit and diligence in collecting this Note or enforcing any of the security
herefor.
Section 4. Additional Agreements.
4.1 Security Agreement. The payment of this Note is secured by
a Security Agreement of even date herewith, executed by Maker in favor of
Holder, on the property described therein.
4.2 Compliance with Usury Laws. It is the intention of Maker
and Holder to conform strictly to applicable usury laws. Accordingly,
notwithstanding any provision to the contrary in this Note, the aggregate of
all interest and any other charges or consideration constituting
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interest under applicable usury law that is taken, reserved, contracted for,
charged or received under this Note, or otherwise in connection with this loan
transaction shall under no circumstances exceed the maximum amount of interest
allowed by the usury law applicable to this loan transaction. If any excess
interest charge or consideration in such respect is taken, reserved, contracted
for, charged, received or provided for, or shall be adjudicated to be so taken,
reserved, contracted for, charged, received or provided for, in this Note,
whether by the terms of this Note or because the maturity of the indebtedness
evidenced by this Note is accelerated for any reason, or in the event of any
required or permitted prepayment, then in any such event (a) the provisions of
this paragraph shall govern and control, (b) neither Maker nor Maker's legal
representatives, successors or assigns or any other liable party shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the Maximum Rate, (c) any excess shall be deemed a mistake and canceled
automatically and, if theretofore paid, shall be credited on this Note by the
holder hereof (or if this Note shall have been paid in full, refunded to
Holder) and (d) the effective rate of interest shall be automatically subject
to reduction to the Maximum Rate allowed as the usury law may now or hereafter
be construed by courts of appropriate jurisdiction.
4.3 Business Days. Should any unpaid principal or interest on
this Note become due and payable upon a day other than a day on which national
banks located in [LOUISIANA] are open for the conduct of all banking business
(a "Business Day"), the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of the unpaid principal, interest
shall be payable thereon at the rate per annum specified in this Note during
such extension.
4.4 Notice. All notices pertaining to this Note must be in
writing, must be sent to the addressee at the address set forth in this
Section, or at such other address as the addressee has designated by a notice
given in the manner set forth in this Section, and must be sent by telegram,
telex, facsimile, electronic mail, courier, or prepaid, certified U.S. Mail.
Notices will be deemed given when received, if sent by telegram, telex,
electronic mail or facsimile and if received between the hours of 8:00 a.m. and
5:00 p.m., local time of the destination address, on a Business Day (with
confirmation of completed transmission sufficing as prima facie evidence of
receipt of a notice sent by telex, telecopy, electronic mail, or facsimile),
and when delivered and receipted for (or when attempted delivery is refused at
the address where sent) if sent by courier or by certified U.S. Mail. Notices
sent by telegram, telex, electronic mail, or facsimile and received between
12:01 a.m. and 7:59 a.m., local time of the destination address, on a business
day will be deemed given at 8:00 a.m. on that same day. Notices sent by
telegram, telex, electronic mail, or facsimile and received at a time other
than between the hours of 12:01 a.m. and 5:00 p.m., local time of the
destination address, on a business day will be deemed given at 8:00 a.m. on the
next following business day after the day of receipt. The addresses for notice
are as follows:
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If to Holder: The Xxxxxx X. Xxx, Xx. Grandchildren's Trust No. 1
__________________________________________________
__________________________________________________
Attn: Xxxxxxx X. Xxx, Trustee
Facsimile No.: (___) _____________________________
If to Maker: TransCoastal Marine Services, Inc.
___________________________________________
___________________________________________
Attn: President
Facsimile No.: (___) ______________________
4.5 Binding Effect. This Note shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
4.6 Interpretation. Whenever possible, each provision of this
Note shall be interpreted in such manner as to be effective and valid under
applicable law. A determination that any provision of this Note is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision.
4.7 Headings. The section headings appearing in this Note have
been inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this Note.
4.8 Entire Agreement. This Note constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified except in writing.
4.9 Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of [LOUISIANA], without
regard to conflicts of laws principles and the applicable laws of the United
States of America.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the
date first written above.
MAKER:
TRANSCOASTAL MARINE SERVICES, INC.
By:
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Name:
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Title:
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