EXHIBIT 10.3
TRICO MARINE SERVICES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
$110,000,000
8 1/2% Series A Senior Notes due 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of July 21, 1997
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX & COMPANY, INC.
BANCBOSTON SECURITIES INC.
This Registration Rights Agreement (this "Agreement") is
made and entered into as of July 21, 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 Bear, Xxxxxxx & Co. Inc., Xxxxxxxxx &
Company, Inc. and BancBoston Securities Inc. (the "Initial
Purchasers"), who have agreed to purchase $110,000,000
aggregate principal amount of the Company's 8 1/2% Series A Senior
Notes due 2005 (the "Series A Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated July 16, 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 A
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 A 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 B 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 B Notes in the same aggregate
principal amount as the aggregate principal amount of
Series A Notes that were tendered by Holders thereof
pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A
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 B 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 B 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 A 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 July 16, 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 A Notes and the Series B 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 B
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 B Notes: The Company's 8 1/2% Series B Senior
Notes due 2005 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 A Note
until (i) the date on which such Series A Note has been
exchanged by a person other than a Broker-Dealer for a
Series B Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a
Series A Note for a Series B Note, the date on which such
Series B 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 A 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 A 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 B
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 B Notes and the Subsidiary Guarantees to be made
under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange Offer, 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 B Notes to be offered in exchange
for the Transfer Restricted Securities and to permit resales of
the Series B 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 B 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 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 contained in 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 A 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 B 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 B 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 60th 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
120th 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 of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any of
such Registration Statements 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 payment date for liquidated
damages, as provided in the Indenture. 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 an Exchange Offer
for such Series A 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 such an 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 B Notes obtained by such Holder in exchange for
Series A 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 B
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 B Notes in its ordinary course of business and
has no arrangement or understanding with any Person to
participate in the distribution of the Series B 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 such Persons, 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), and make such customary
representations and warranties, 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 whether or
not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration,
the Company and the Guarantors shall:
(A) Except in the case of an Underwritten
Registration, 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 an
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
such Persons, 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
A Notes covered by the Shelf Registration Statement,
Series B Notes, having an aggregate principal amount equal
to the aggregate principal amount of Series A Notes being
sold by such Holder; such Series B Notes to be registered
in the name of the purchaser(s) of such Notes, as the case
may be; in return, the Series A 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 an 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 which 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 A 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 B 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 which 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 which 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 which 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 which 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 which 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 which 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 which 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 any 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 or registered.
(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.
Place St. Xxxxxxx
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.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
Trico Marine Services, Inc.
By /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
and President
Trico Marine Assets, Inc.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
Chief Executive Officer
and President
Trico Marine Operators, Inc.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
Chief Executive Officer
and President
Accepted and agreed to as of
the date first above written:
Bear, Xxxxxxx & Co. Inc.
By /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Senior Managing Director
Xxxxxxxxx & Company, Inc.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Senior Managing Director
BancBoston Securities Inc.
By /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Senior Managing Director
