exv10w1




Exhibit 10.1





Execution Version




EXCHANGE AGREEMENT




          EXCHANGE AGREEMENT (the “Agreement”), dated as of May 11, 2009, by and among Trico Marine
Services, Inc., a Delaware corporation with headquarters located at 10001 Woodloch Forest Drive,
Suite 610, The Woodlands, Texas 77380 (the “Company”), and                      (the “Investor”).



          WHEREAS:



          A. The Company, the Investor and certain other investors (the “Original Investors”) are
parties to that certain Securities Purchase Agreement, dated as of May 14, 2008, as amended (the
“Existing Securities Purchase Agreement”), pursuant to which the Original Investors purchased from
the Company 6.50% Senior Convertible Debentures due 2028 (the “Existing Debentures”), which are
convertible into shares (the “Existing Conversion Shares”) of the Company’s common stock, par value
$0.01 per share (the “Common Stock”), pursuant to that certain indenture dated as of May 16, 2008,
by and between the Company and Wells Fargo Bank, National Association, as trustee (such indenture,
as modified by any supplement and amendment thereto as of the date hereof, the “Existing Indenture”
and together with the Existing Debentures and the Existing Securities Purchase Agreement, the
“Original Documents”).



          B. The Company and the Investor desire to enter into this Agreement, pursuant to which, among
other things, on the Closing Date (as defined below), the Company and the Investor shall exchange
the aggregate principal amount and accrued but unpaid interest in respect thereof (including the
Interest Make-Whole) of the Investor’s Existing Debentures set forth opposite the Investor’s name
in column (3) of the Schedule of Investors (the “Schedule of Investors”) attached hereto as
Exhibit A (the “Existing Debenture Amount,” and such Existing Debentures being exchanged,
the “Existing Exchanged Debentures”) for (x) an amount of cash as is set forth opposite the
Investor’s name in column (6) of the Schedule of Investors (the “Cash Consideration”), (y) (A) if
the Investor is not an Alien (as defined in the Company’s Certificate of Incorporation), such
number of shares of Common Stock as is set forth opposite the Investor’s name in column (4) of the
Schedule of Investors (the “Exchanged Common Shares”) or (B) if the Investor is an Alien, a penny
warrant in the form attached hereto as Exhibit B (the “Exchanged Warrants,” and together
with the Exchanged Common Shares, the “Exchanged Equity”) exercisable into the number of shares of
Common Stock set forth opposite the Investor’s name in column (9) of the Schedule of Investors (the
“Exchanged Warrant Shares”), and (z) a secured convertible debenture in an aggregate principal
amount as is set forth opposite the Investor’s name in column (5) of the Schedule of Investors (the
“Exchanged Debentures”), which shall be convertible into shares of Common Stock (the “Exchanged
Conversion Shares”) pursuant to an indenture, by and between the Company and Wells Fargo Bank,
National Association, as trustee (the “Trustee”), in the form attached hereto as Exhibit C
(the “Exchanged Indenture”).



          C. The exchange (the “Exchange”) of the Existing Exchanged Debentures of the Investor for the
Cash Consideration, the Exchanged Equity and the



 









 







Exchanged Debentures is being made in reliance upon the exemption from registration provided
by Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”).



          D. The Exchanged Debentures, the Exchanged Equity, the Exchanged Conversion Shares and the
Exchanged Warrant Shares collectively are referred to herein as the “Securities.”



          E. Concurrently herewith certain of the Original Investors and certain other beneficial owners
of Existing Debentures (the “Other Investors”, and collectively with the Investor, the
“Participating Investors”) are entering into agreements identical to this Agreement (the “Other
Agreements”) (other than proportional changes (the “Proportionate Changes”) in the numbers
reflecting the different principal amount of the Investor’s Existing Debentures being exchanged
pursuant thereto) with the Company.



          F. The Exchanged Debentures shall be senior secured obligations of the Company, shall rank
senior to all other indebtedness with respect to the collateral described on Schedule I
hereto (the “Collateral”) (other than indebtedness secured by Permitted Liens with respect to such
Collateral), shall otherwise rank on parity in right of payment with all other senior indebtedness
of the Company and shall rank senior in right of payment to all subordinated indebtedness of the
Company; provided that the Exchanged Debentures shall be subordinated to the Existing Debentures.
The Exchanged Debentures shall rank senior to all future indebtedness of the Company to the extent
the future indebtedness is expressly subordinated to the Exchanged Debentures. The Exchanged
Debentures will be secured by a perfected security interest, in the assets of the Company and its
Subsidiaries described on Schedule I hereto, as evidenced by (a) a pledge agreement in the
form attached hereto as Exhibit D (as amended or modified from time to time in accordance
with its terms, the “Pledge Agreement”), (b) guarantees from certain Subsidiaries of the Company in
the form attached hereto as Exhibit E (as amended or modified from time to time in
accordance with its terms, the “Guarantees”), (c) that certain intercreditor agreement, by and
among the Company, Trico Marine Assets, Inc., Trico Marine Operators, Inc., the Trustee and Nordea
Bank Finland plc, New York Branch (the “Existing Secured Lenders”), in the form attached hereto as
Exhibit F (as amended or modified from time to time in accordance with its terms, the
“Intercreditor Agreement”), (d) certain mortgages with respect to the Collateral in the form
attached hereto as Exhibit G (as amended or modified from time to time in accordance with
its terms, the “Mortgages”), (e) assignments of earnings in the form of Exhibit H (as
amended or modified from time to time in accordance with its terms, the “Assignments of Earnings”),
(f) assignments of insurances in the form of Exhibit I (as amended or modified from time to
time in accordance with its terms, the “Assignments of Insurances”), and (g) assignments of
charters (existing or future) in the form of Exhibit B to any Assignment of Earnings (as amended or
modified from time to time in accordance with its terms, the “Assignments of Charters” and,
together with the Pledge Agreement, the Guarantees, the Intercreditor Agreement, the Mortgages, the
Assignments of Earnings, the Assignments of Insurances and the Assignments of Charters and any
ancillary documents related thereto, collectively the “Security Documents”).



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          G. Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings ascribed to them in the Existing Securities Purchase Agreement.



          NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the Company and the Investor hereby agree as follows:




	 	1.	 	EXCHANGE OF EXISTING EXCHANGED DEBENTURES AND ISSUANCE OF
EXCHANGED EQUITY AND EXCHANGED DEBENTURE.





               (a) Exchange. Subject to satisfaction (or waiver) of the conditions set forth in
Sections 3 and 4 below, at the closing of the transactions contemplated by this Agreement (the
“Closing”), the Investor shall surrender to the Company by electronic delivery by
Deposit/Withdrawal at Custodian (“DWAC”) the Existing Exchanged Debentures and the Company shall
deliver to the Investor (i) the Cash Consideration by wire transfer on the Closing Date (as defined
below), in U.S. dollars and immediately available funds, in accordance with the wire instructions
of the Investor delivered to the Company on or prior to the Closing Date, (ii) the number of
Exchanged Common Shares or Exchanged Warrants, as applicable, as is set forth opposite the
Investor’s name in column (4) or column (5), respectively, of the Schedule of Investors by causing
(A) in the case Exchanged Common Shares are being delivered, the Depository Trust Company (“DTC”)
to credit the applicable Exchanged Common Shares to the account of the broker for the Investor set
forth opposite the Investor’s name in column (8) of the Schedule of Investors (the “Investor
Broker”), through the facilities of DTC, in accordance with the irrevocable written instructions
attached hereto as Exhibit J (the “DTC Instructions”), or (B) in the case Exchanged
Warrants are being delivered, the Exchanged Warrants in certificated form in the name the Investor
shall request on or prior to the Closing, and (iii) the Exchanged Debentures in the manner set
forth in Section 1(b) hereto.



               (b) Delivery of Exchanged Debentures. The Exchanged Debentures in the aggregate
principal amount set forth opposite the Investor’s name in column (5) of the Schedule of Investors
will be delivered to the Investor, or the Trustee as custodian for DTC, by causing DTC to credit
such Exchanged Debentures to the account of the Investor through the facilities of DTC. The
Exchanged Debentures will be evidenced by one or more global securities in definitive form (the
“Global Debentures”) or by additional definitive securities and will be registered, in the case of
the Global Debentures, in the name of Cede & Co. as nominee of DTC, and in the other cases, in such
names and in such denominations as the Investor shall request prior to 9:30 a.m., New York City
time, on the second Business Day preceding the Closing Date. If applicable, the Exchanged Debenture
to be delivered to the Investor shall be made available to the Investor for inspection and
packaging not later than 9:30 a.m., New York City time, on the Business Day immediately preceding
the Closing Date.



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               (c) Closing Date. The date and time of the Closing (the “Closing Date”) shall be
10:00 a.m., New York Time, on May 12, 2009, subject to notification of satisfaction (or waiver) of
the conditions to the Closing set forth in Sections 3 and 4 below (or such earlier or later date as
is mutually agreed to by the Company and the Investor). The Closing shall occur on the Closing
Date at the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022.




	 	2.	 	REPRESENTATIONS; WARRANTIES AND COVENANTS





               (a) Investor Representations. The Investor hereby represents and warrants to the
Company as to the Exchanged Equity, the Exchanged Debentures, the Exchanged Conversion Shares and
the Exchanged Warrant Shares as of the date hereof and as of the Closing Date:




               (i) No Public Sale or Distribution. The Investor (A) is acquiring the Exchanged Equity
and the Exchanged Debentures, (B) upon conversion of the Exchanged Debentures in accordance
with the terms of the indenture entered into in connection therewith, will acquire the
Exchanged Conversion Shares issuable upon conversion of the Exchanged Debentures and (C) if
it receives Exchanged Warrants, upon exercise of the Exchanged Warrants in accordance with
the terms of such warrants, will receive the Exchanged Warrant Shares issuable upon
conversion of the Exchanged Warrants, in each case, for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempt from registration under the Securities Act. The
Investor is acquiring the Securities hereunder in the ordinary course of its business. The
Investor does not presently have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the Securities.




               (ii) Accredited Investor Status. The Investor is an “accredited investor” as that term
is defined in Rule 501(a) of Regulation D under the Securities Act and, unless the Investor
is listed in Annex A hereto, a “qualified institutional buyer” within the meaning
of Rule 144A under the Securities Act.




               (iii) Reliance on Exemptions. The Investor understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws, including Section 4(2) of
the Securities Act, and that the Company is relying in part upon the truth and accuracy of,
and the Investor’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Investor set forth herein in order to determine
the availability of such exemptions and the eligibility of the Investor to acquire the
Securities.




               (iv) Information. The Investor and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company and materials
relating to the transactions contemplated



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hereby which have been requested by the Investor. The Investor and its advisors, if
any, have been afforded the opportunity to ask questions of the Company. Neither such
inquiries nor any other due diligence investigations conducted by the Investor or its
advisors, if any, or its representatives shall modify, amend or affect the Investor’s right
to rely on the Company’s representations and warranties contained herein. The Investor
understands that its investment in the Securities involves a high degree of risk. The
Investor has sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its acquisition of the Securities.




               (v) No Governmental Review. The Investor understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the
investment in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.




               (vi) Validity; Enforcement. This Agreement and any other documents or agreements
executed by the Investor in connection with the transactions contemplated hereunder (the
“Investor Transaction Documents”) have been duly and validly authorized, executed and
delivered on behalf of the Investor and shall constitute the legal, valid and binding
obligations of the Investor enforceable against the Investor in accordance with their
respective terms, except as such enforceability may be limited by general principles of
equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.




               (vii) No Conflicts. The execution, delivery and performance by the Investor of this
Agreement and the Investor Transaction Documents and the consummation by the Investor of
the transactions contemplated hereby and thereby will not (A) result in a violation of the
organizational documents of the Investor or (B) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Investor is a party, or (C) result in a
violation of any law, rule, regulation, order, judgment or decree (including federal and
state securities laws) applicable to the Investor, except in the case of clauses (B) and
(C) above, for such conflicts, defaults, rights or violations which would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of the Investor to perform its obligations hereunder.




               (viii) Residency. The Investor is a resident of that jurisdiction specified below its
address on the Schedule of Investors.



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               (ix) No Transactions in Company Securities. Other than with respect to the
transactions contemplated herein, during the period commencing with the time that the
Investor was first contacted by the Company regarding the Exchange contemplated by this
Agreement (the “First Contact Time”), through such time as the transactions contemplated by
this Agreement are first publicly announced, neither the Investor nor any affiliate of the
Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares
discretion relating to the Investor’s investments or trading or information concerning the
Investor’s investments and (z) is subject to the Investor’s review or input concerning such
affiliate’s investments or trading, has engaged, directly or indirectly, in any Trading
Transaction in the securities of the Company or involving the Company’s securities. For the
purpose of this Agreement, “Trading Transaction” includes, without limitation, (A) any
hedging or other transaction which is designed to or could reasonably be expected to lead
to or result in, or be characterized as, a sale, an offer to sell, a purchase, a
solicitation of offers to buy, disposition of, loan, pledge or grant of any right with
respect to any securities of the Company; (B) all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (whether or not such sale or position is “against the box”); and (C) except
as contemplated in Section 2(c)(lix) below, all types of direct and indirect stock pledges,
forward sale contracts, options, puts, calls, swaps and similar arrangements (including on
a total return basis), and sales and other transactions through US broker dealers, non-US
broker dealers or foreign regulated brokers involving securities of the Company.
Notwithstanding the foregoing, if the Investor is a multi-managed investment vehicle
whereby separate portfolio managers manage separate portions of the Investor’s assets and
the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of the Investor’s assets, the representation set
forth above shall only apply with respect to (i) the portfolio manager, and the portion of
assets managed by such portfolio manager, with investment authority over the Existing
Exchanged Debentures and the Exchange (the “Securities Division”) and (ii) any other
portfolio managers managing assets other than the assets of the Securities Division or any
affiliate of the Investor which (x) had or has knowledge of the transactions contemplated
hereby, (y) has or shares discretion relating to the investments of the Securities Division
or trading or information concerning such investments and (z) is subject to the review or
input of the Securities Division concerning its investments or trading.




               (x) Affiliate Status. The Investor represents and warrants either (A) that the
Investor is not an “affiliate” of the Company within the meaning of Rule 144 under the
Securities Act (“Rule 144”), nor has the Investor been an affiliate of the Company during
the past 90 days, or (B) that (1) the Investor has owned the Existing Exchanged Debentures,
both beneficially and of record, for not less than a period of six months preceding the
Closing Date; full consideration for the Existing Exchanged Debentures was provided at
least six months prior to the Closing Date; if the Investor was not the beneficial owner or
record owner of the Existing Exchanged Debentures or did not pay full



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consideration for the Existing Exchanged Debentures for at least six months prior to
the Closing Date, it represents that it has met the six-month holding period requirements
set forth in Rule 144(d); (2) it does not know or have any reason to know that the Company
has not complied with the reporting requirements contained in Rule 144(c)(1) and it is not
aware of any non-public material adverse information about the Company; (3) neither the
Investor nor any of its affiliates is, and for the three months immediately preceding the
Closing Date, has been an officer, director or a “beneficial owner” of more than 10% of the
 shares of Common Stock (as defined for purposes of Rule 13d-3 of the Exchange Act); (4)
neither the Investor nor any of its affiliates is, and for the three months immediately
preceding the Closing Date, has been: (a) effecting or seeking, offering or proposing
(whether publicly or otherwise) to effect, or cause or participate in or in any way assist
any other person to effect or seek, offer or propose (whether publicly or otherwise) to
effect or participate in (other than pursuant to agreements entered into with the Company),
(i) any material acquisition of any securities (or beneficial ownership thereof) or assets
of the Company or any of its subsidiaries out of the ordinary course of business , (ii) any
tender or exchange offer, merger or other business combination involving the Company or any
of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or
other extraordinary transaction with respect to the Company or any of its subsidiaries, or
(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the
Commission) or consents to vote any voting securities of the Company; (b) forming, joining
or in any way participating in a “group” (as defined under the Exchange Act) with respect
to the Company; (c) otherwise acting, alone or in concert with others, to seek to control
or influence the management, Board of Directors or policies of the Company; or (d) entering
into any discussions or arrangements with any third party with respect to any of the
foregoing; and (5) neither the Investor nor any of its affiliates is aware of any other
facts and circumstances that would make the Investor or any of its affiliates an
“affiliate” of the Company within the meaning of Rule 144.




               (xi) Evaluation. The Investor has evaluated the Exchange in light of the Investor’s
financial situation and the Investor has relied on the Investor’s own investment, tax and
other advisors in reaching a decision to enter into the Exchange with the Company.




               (xii) Reasonable Best Efforts. The Investor shall use its reasonable best efforts
timely to satisfy each of the conditions to be satisfied by it as provided in Sections 3
and 4 of this Agreement.



               (b) Investor Representation Relating to Existing Securities Purchase Agreement. The
Investor represents and warrants to the Company that on and after the Closing Date, the Company is
under no obligation to comply with, and the Investor may not recover for, a breach of any covenant
by the Company set forth in the Existing Securities Purchase Agreement that occurs on or after the
Closing Date.



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               (c) Company Representations. The Company hereby represents and warrants to the
Investor that as of the date hereof and as of the Closing Date:




               (i) Rule 144A Eligibility Requirements.




     (1) When the Exchanged Debentures are issued and delivered
pursuant to this Agreement, the Exchanged Debentures will not be
of the same class (within the meaning of Rule 144A under the
Securities Act) as securities of the Company that are listed on a
United States national securities exchange or that are quoted in a
United States automated inter-dealer quotation system.




     (2) The Exchanged Debentures satisfy the eligibility
requirements of Rule 144(A)(d)(3) under the Securities Act.




               (ii) Investment Company. Neither the Company nor any of its Subsidiaries (as defined
in the Exchanged Indenture) is, or after giving effect to the transactions contemplated
hereby, including, without limitation, the Exchange and the conversion of the Exchanged
Debentures into the Exchanged Conversion Shares in the manner contemplated by the Exchanged
Indenture, will be, an “investment company” or a company “controlled” by, or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.




               (iii) Securities Act Exemption; No General Solicitation. Assuming that the Investor’s
representations and warranties in Section 2 are true, the Exchange, the conversion of the
Exchanged Debentures into the Exchanged Conversion Shares in the manner contemplated by the
Exchanged Indenture and the exercise of the Exchanged Warrants for the Exchanged Warrant
Shares in the manner contemplated by the Exchanged Warrant, are exempt from the
registration requirements of the Securities Act. No form of general solicitation or general
advertising within the meaning of Regulation D under the Securities Act was used by the
Company or any of its Subsidiaries, or affiliates or representatives in connection with the
transactions contemplated hereby, including, without limitation the Exchange and the
conversion of the Exchanged Debentures into the Exchanged Conversion Shares in the manner
contemplated by the Exchanged Indenture.




               (iv) Exchange Act Reports. During the year prior to the date hereof, the Company has
timely filed all reports, schedules, forms, statements and other documents required to be
filed by it with the Commission pursuant to the reporting requirements of the Exchange Act
(all of the foregoing filed prior to the date hereof and all exhibits included therein and
financial



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statements, notes and schedules thereto and documents incorporated by reference
therein being hereinafter referred to as the “Exchange Act Reports”). The Company has
delivered to the Investor or its representatives true, correct and complete copies of each
of the Exchange Act Reports not available on the EDGAR system that have been requested by
the Investor. The Exchange Act Reports when filed with the Commission together, where
applicable, with any amendments thereto, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such reports when filed with the Commission contained an untrue
statement of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in the light of the circumstances under
which they were made, not misleading; and any further reports, when such reports are filed
with the Commission, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.




               (v) Shipping Act. In connection with the operation by the Company or any of its
Subsidiaries of United States flag vessels, the Company and such Subsidiaries are citizens
of the United States within the meaning of Section 2 of the Shipping Act, 1916, as amended.




               (vi) Organization and Qualification. The Company and each of its Subsidiaries has
been duly organized and is validly existing and in good standing as a corporation or other
business entity under the laws of its jurisdiction of organization and is duly qualified to
do business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), operations, results of
operations, stockholders’ equity, properties, assets, business or prospects of the Company
and its Subsidiaries individually or taken as a whole, or a material adverse effect on the
performance by the Company of its obligations under this Agreement, the Exchanged
Indenture, the Exchanged Debentures or the consummation of any of the transactions
contemplated hereby or thereby (a “Material Adverse Effect”). The Company and each of its
Subsidiaries has all power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged. The Company has no Subsidiaries except as
set forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most recent
fiscal year. None of the Subsidiaries of the Company (other than Trico Marine Assets,
Inc., Trico Marine Operators, Inc., Trico Supply AS and Trico Shipping AS (collectively,
the “Significant Subsidiaries”)) is a “significant subsidiary” (as defined in Rule 1-02 of
Regulation S-X).



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               (vii) Equity Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of 55 million shares of all classes of
stock, of which 50 million
shares are Common Stock, of which as of the date hereof, 16,767,772 are issued and
outstanding, 324,984 shares are reserved for issuance pursuant to the Company’s stock
option and purchase plans and 2,075,976 shares are reserved for issuance pursuant to
securities (other than the aforementioned options, the Existing Debentures, the Exchanged
Debentures and the Exchanged Warrants and excluding shares, if any, that may be issued upon
conversion of the 2027 Convertible Exchanged Debentures (as defined in the Exchanged
Indenture) and the phantom stock units issued in connection with the Acquisition)
exercisable or exchangeable for, or convertible into, Common Stock, and 5,000,000 shares
are preferred stock, of which as of the date hereof, no shares are issued and outstanding.
All of the issued shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and were issued in compliance with
federal and state securities laws and not in violation of any preemptive right, resale
right, right of first refusal or similar right. All of the Company’s options, warrants and
other rights to purchase or exchange any securities for shares of the Company’s capital
stock have been duly authorized and validly issued and were issued in compliance with
federal and state securities laws. All of the issued shares of capital stock of each
Subsidiary of the Company have been duly authorized and validly issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or
claims as would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect. Except as set forth in the Exchange Act Reports or in other filings made by the
Company with the Commission: (i) none of the Company’s capital stock is subject to
preemptive rights or any other similar rights or any liens or encumbrances suffered or
permitted by the Company; (ii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become bound to
issue additional capital stock of the Company or any of its Subsidiaries or options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, or exercisable or exchangeable for,
any capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding
debt securities, notes, credit agreements, credit facilities or other agreements, documents
or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by
which the Company or any of its Subsidiaries is or may become bound; (iv) there are no
agreements or arrangements under which the Company or any of its Subsidiaries is obligated
to register the sale of any of their securities under the Securities Act; (v) there are no
outstanding securities or instruments of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or



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arrangements by which the Company or any of its Subsidiaries is or may become bound to
redeem a security of the Company or any of its Subsidiaries; (vi) there are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Securities; (vii) the Company does not have any stock appreciation rights
or “phantom stock” plans or agreements or any similar plan or agreement; and (viii) the
Company and its Subsidiaries have no liabilities or obligations required to be disclosed in
the Exchange Act Reports but not so disclosed in the Exchange Act Reports, other than those
incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses
and which, individually or in the aggregate, do not or would not have a Material Adverse
Effect. True, correct and complete copies of the Company’s Certificate of Incorporation,
as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and
the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and
the terms of all securities convertible into, or exercisable or exchangeable for, shares of
Common Stock and the material rights of the holders thereof in respect thereto have been
filed with the Commission.




               (viii) Authorization of Exchanged Indenture. The Company has all requisite corporate
power and authority to execute, deliver and perform its obligations under the Exchanged
Indenture. The Exchanged Indenture has been duly and validly authorized by the Company,
and upon its execution and delivery and (assuming due authorization, execution and delivery
by the Trustee) will constitute the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors’ rights generally, by general equitable
principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law), public policy, applicable law relating to indemnification and
contribution and by an implied covenant of good faith and fair dealing.




               (ix) Issuance of Exchanged Debentures. The Company has all requisite corporate power
and authority to execute, issue, sell and perform its obligations under the Exchanged
Debentures. The Exchanged Debentures have been duly authorized by the Company and, when
duly executed by the Company in accordance with the terms of the Exchanged Indenture,
assuming due authentication of the Exchanged Debentures by the Trustee, upon delivery to
the Investor against payment therefore in accordance with the terms hereof, will be validly
issued and delivered and will constitute valid and binding obligations of the Company
entitled to the benefits of the Exchanged Indenture, enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors’ rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law), public
policy, applicable law relating to indemnification and contribution and by an implied
covenant of good faith and fair dealing.



11









 






               (x) Issuance of Exchanged Conversion Shares. The Company has all the requisite
corporate power and authority to reserve for issuance and to issue and deliver the
Exchanged Conversion Shares issuable upon conversion of the Exchanged Debentures. The
Exchanged Conversion Shares have been duly and validly authorized by the Company and when
issued upon conversion of the Exchanged Debentures in accordance with the terms of the
Exchanged Debentures, will be validly issued, fully paid and non-assessable, and the
issuance of the Exchanged Conversion Shares will not be subject to any preemptive or
similar rights.




               (xi) Issuance of Exchanged Common Shares. The Company has all the requisite corporate
power and authority to issue and deliver the Exchanged Common Shares. The Exchanged Common
Shares have been duly and validly authorized by the Company and when issued in accordance
with the terms of this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of the Exchanged Common Shares will not be subject to any preemptive or
similar rights.




               (xii) Issuance of Exchanged Warrants. The Company has all requisite corporate power
and authority to execute, issue, sell and perform its obligations under the Exchanged
Warrants. The Exchanged Warrants have been duly authorized by the Company and, when duly
executed by the Company, upon delivery to the Investor against payment therefore in
accordance with the terms hereof, will be validly issued and delivered and will constitute
valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting
creditors’ rights generally, by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), public policy,
applicable law relating to indemnification and contribution and by an implied covenant of
good faith and fair dealing.




               (xiii) Issuance of Exchanged Warrant Shares. The Company has all the requisite
corporate power and authority to reserve for issuance and to issue and deliver the
Exchanged Warrant Shares issuable upon exercise of the Exchanged Warrants. The Exchanged
Warrant Shares have been duly and validly authorized by the Company and when issued upon
exercise of the Exchanged Warrants in accordance with the terms thereof, will be validly
issued, fully paid and non-assessable, and the issuance of the Exchanged Warrant Shares
will not be subject to any preemptive or similar rights.




               (xiv) Authorization of Agreement. The Company has all requisite corporate power and
authorization to execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized by the Company and, when executed and
delivered by the Company in accordance with the terms hereof, will be validly executed and
delivered and (assuming the due authorization, execution and delivery hereof by the
Investor)



12









 







will be the legally valid and binding obligation of the Company in accordance with the
terms hereof, enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditor’s rights generally, by general
equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), public policy, applicable law relating to indemnification
and contribution and by an implied covenant of good faith and fair dealing.




               (xv) Authorization of Security Documents. The Company has all requisite corporate
power and authorization to execute, deliver and perform its obligations under the Security
Documents to which it is a party. The Security Documents to which it is a party have been
duly and validly authorized by the Company and, when executed and delivered by the Company
in accordance with the terms thereof, will be validly executed and delivered and (assuming
the due authorization, execution and delivery hereof by the Investor) will be the legally
valid and binding obligations of the Company in accordance with the terms hereof,
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditor’s rights generally, by general
equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), public policy, applicable law relating to indemnification
and contribution and by an implied covenant of good faith and fair dealing.




               (xvi) No Conflicts. The Company represents and warrants to the Investor that the
execution and delivery of this Agreement and the consummation of the transactions
contemplated herein and the fulfillment of the terms hereof and thereof, do not (i)
conflict with or result in a breach or violation of any of the terms or provisions of,
impose any lien, charge or encumbrance upon any property or assets of the Company or its
Subsidiaries, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, any indenture, mortgage, deed of trust, loan agreement,
license, lease or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to
which any of the property or assets of the Company or any of its Subsidiaries is subject or
give to others any rights of termination, amendment, acceleration or cancellation of, the
Existing Securities Purchase Agreement, including, without limitation Section 4(v) thereof;
provided, however, that this clause (i) shall not apply to the Original Documents; (ii)
result in any violation of the provisions of the charter or by-laws or similar
organizational document of the Company or any of its Subsidiaries or (iii) result in any
violation of any statute or any judgment, order, decree, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its Subsidiaries
or any of their properties or assets.



13









 






               (xvii) Consents. No consent, approval, authorization or order of, or filing,
registration or qualification with any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries is required for the transactions
contemplated hereby, including, without limitation, the Exchange and the conversion of the
Exchanged Debentures into the Exchanged Conversion Shares in the manner contemplated by the
Exchanged Indenture, the execution, delivery, issuance and performance by the Company of
the Exchanged Debentures, the Exchanged Indenture and this Agreement, and such consents,
approvals, authorizations, orders, filings, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Investor. The Company and its Subsidiaries are
unaware of any facts or circumstances which might prevent the Company from obtaining or
effecting any of the registration, application or filings pursuant to the preceding
sentence. The Company is not in violation of the requirements of The NASDAQ Global Select
Market (the “Principal Market”) and has no knowledge of any facts that could reasonably be
expected to lead to delisting or suspension of the Common Stock in the foreseeable future.




               (xviii) No Integrated Offering. Neither the Company nor any other Person acting on
behalf of the Company has offered, sold or issued to any Person any securities that would
be integrated with the offering of the Securities contemplated by this Agreement pursuant
to the Securities Act, the rules and regulations thereunder or the interpretations thereof
by the Commission.




               (xix) No Interference with Business. Except as set forth in Exchange Act Reports,
neither the Company nor any of its Subsidiaries has sustained, since the date of the latest
audited financial statements, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, and, since such date, there has
not been any change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any adverse change in or affecting the condition (financial or otherwise),
results of operations, stockholders’ equity, properties, management or business of the
Company and its subsidiaries, taken as a whole, in each case except as would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.




               (xx) Financial Statements. As of their respective dates, the financial statements of
the Company included in the Exchange Act Reports complied as to form in all material
respects with applicable accounting requirements and the published rules and regulations of
the Commission with respect thereto as in effect as of the time of filing. Such financial
statements have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be



14









 







condensed or summary statements) and fairly present in all material respects the
financial condition of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). There is no transaction, arrangement,
or other relationship between the Company and an unconsolidated or other off balance sheet
entity that is required to be disclosed by the Company in its Exchange Act Reports and is
not so disclosed or that otherwise would be reasonably likely to have a Material Adverse
Effect.




               (xxi) Accountants. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company included in the Exchange Act Reports, were independent public
accountants as required by the Securities Act and the rules and regulations thereunder
during the periods covered by the financial statements on which they reported contained or
incorporated by reference in the Exchange Act Reports.




               (xxii) Title. The Company and each of its Subsidiaries has good and marketable title
to all real and personal property owned by them, in each case free and clear of all liens,
encumbrances and defects, except such as are described in the Exchange Act Reports or where
the existence of such liens would not reasonably be expected to have a Material Adverse
Effect; and all assets held under lease by the Company or any of its Subsidiaries are held
by them under valid, subsisting and enforceable leases, except as described in the Exchange
Act Reports or where such invalidity or unenforceability would not reasonably be expected
to have a Material Adverse Effect.




               (xxiii) Insurance. The Company and each of its Subsidiaries carry, or are covered by,
insurance from insurers of recognized financial responsibility in such amounts and covering
such risks as is adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in similar businesses
in similar industries. All policies of insurance of the Company and its Subsidiaries are
in full force and effect; the Company and its Subsidiaries are in compliance with the terms
of such policies in all material respects; and neither the Company nor any of its
subsidiaries has received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made to continue such
insurance. Neither the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material Adverse Effect.
Schedule II sets forth a list of all insurance relating to the Mortgaged Vessels
(as defined below) maintained by the Company and each Guarantor (as defined in the
Exchanged Indenture) as of the date hereof, with the amounts insured (and any deductibles)
set forth therein.



15









 






               (xxiv) Regulatory Permits. The Company and each of its Subsidiaries have such
permits, licenses, patents, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities (“Permits”) as are necessary under
applicable law to own their properties and conduct their businesses in the manner described
in the Exchange Act Reports, except for any of the foregoing that would not reasonably be
expected to have a Material Adverse Effect; each of the Company and its Subsidiaries has
fulfilled and performed all of its obligations with respect to the Permits, and no event
has occurred that allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the rights of the holder or any
such Permits, except for any of the foregoing that would not reasonably be expected to have
a Material Adverse Effect.




               (xxv) Legal Proceedings.




     (1) Except as described in the Exchange Act Reports, there
are no legal or governmental proceedings pending against or
affecting the Company or any of its Subsidiaries, the Common
Stock, any property or assets of the Company or any of its
Subsidiaries or any of the Company’s or its Subsidiaries’ officers
or directors in their capacities as such, whether of a civil or
criminal nature or otherwise that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and to the Company’s knowledge, no such proceedings are
threatened or contemplated by any governmental authority or other
Person.




     (2) Except as described in the Exchange Act Reports, there
are no legal or governmental proceedings or contracts or other
documents that would be required to be described in a registration
statement filed under the Securities Act or, in the case of
documents, would be required to be filed as exhibits to a
registration statement of the Company pursuant to Item 601(b)(10)
of Regulation S-K. Neither the Company nor any of its
Subsidiaries has knowledge that any other party to any such
contract, agreement or arrangement has any intention not to render
full performance as contemplated by the terms thereof.




               (xxvi) Transactions with Affiliates. Except as set forth in the Exchange Act Reports,
no relationship, direct or indirect, that would be required to be described in a
registration statement of the Company pursuant to Item 404 of Regulation S-K, exists
between or among the Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand.



16









 






               (xxvii) Employee Relations.




     (1) No labor disturbance by the employees of the Company or
any of its Subsidiaries exists or, to the knowledge of the Company
and each of its Subsidiaries, is imminent that would reasonably be
expected to have a Material Adverse Effect. None of the Company’s
or its Subsidiaries’ U.S. employees are represented by labor
unions nor are they employed pursuant to collective bargaining
agreements or similar arrangements. The Company’s or its
Subsidiaries’ Norwegian and United Kingdom seamen work under union
contracts, and their seamen in Brazil are covered by separate
collective bargaining agreements. The Company and its
Subsidiaries believe that their relations with their employees are
good. No executive officer of the Company or any of its
Subsidiaries (as defined in Rule 501(f) of the Securities Act) has
notified the Company or any such Subsidiary that such officer
intends to leave the Company or any such Subsidiary or otherwise
terminate such officer’s employment with the Company or any such
Subsidiary. To the Company’s knowledge, no executive officer of
the Company or any of its Subsidiaries is in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition
agreement, or any other contract or agreement or any restrictive
covenant, except for such violations as would not, individually or
in the aggregate, reasonably be expected to have a Material
Adverse Effect.




     (2) The Company and its Subsidiaries are in compliance with
all federal, state, local and foreign laws and regulations
respecting labor, employment and employment practices and
benefits, terms and conditions of employment and wages and hours,
except where failure to be in compliance would not, either
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company and each of its Subsidiaries
are in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension plan”
(as defined in ERISA) for which the Company or any of its
Subsidiaries would have any liability; the Company and its
Subsidiaries have not incurred and do not expect to incur
liability under (i) Title



17









 







IV of ERISA with respect to termination of, or withdrawal
from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “Code”);
each “pension plan” for which the Company and its Subsidiaries
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification; and the
Company and each of its Subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than
for payment of premiums in the ordinary course of business).




               (xxviii) Taxes. The Company and each of its Subsidiaries (i) has filed all federal,
state, local and foreign income and franchise tax returns required to be filed through the
date hereof, subject to permitted extensions, (ii) has paid all taxes due thereon except in
each case as would not reasonably be expected to have a Material Adverse Effect, (iii) has
set aside on its books provision reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. No
tax deficiency has been determined adversely to the Company or any of its Subsidiaries, nor
does the Company have any knowledge of any tax deficiencies that would, in the aggregate,
reasonably be expected to have a Material Adverse Effect.




               (xxix) Absence of Certain Changes. Except as disclosed in the Exchange Act Reports,
since December 31, 2008, there has been no material adverse change and no material adverse
development in the business, assets, properties, operations, condition (financial or
otherwise) or results of operations of the Company or its Subsidiaries. Except as
disclosed in the Exchange Act Reports, since December 31, 2008, neither the Company nor any
of its Subsidiaries has (i) declared or paid any dividends on its or their capital stock,
(ii) sold any material assets outside of the ordinary course of business, other than the
sale of the vessel Northern Gambler and related assets or (iii) had material capital
expenditures outside of the ordinary course of business. Neither the Company nor any of
its Subsidiaries has taken any steps to seek protection pursuant to any bankruptcy law nor
does the Company have any knowledge or reason to believe that its creditors intend to
initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would
reasonably lead a creditor to do so. The Company and its Subsidiaries, individually and on
a consolidated basis, are not as of the date hereof, and after giving effect to the
transactions contemplated hereby to occur at the Closing will not be, Insolvent (as defined
below). For purposes of this Section 2(c)(xxix), “Insolvent” means, with respect to any
Person (i) the present fair saleable value of such Person’s assets is less than the amount
required to pay such Person’s total Indebtedness, (ii) such Person is unable to pay its
debts and liabilities, subordinated, contingent or



18









 







otherwise, as such debts and liabilities become absolute and matured, (iii) such
Person intends to incur or believes that it will incur debts that would be beyond its
ability to pay as such debts mature or (iv) such Person has unreasonably small capital with
which to conduct the business in which it is engaged as such business is now conducted and
is proposed to be conducted.




               (xxx) Books and Records. The Company and each of its Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains and has maintained effective internal control
over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of
internal accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management’s general or specific
authorization, (B) transactions are recorded as necessary to permit preparation of its or
their financial statements in conformity with accounting principles generally accepted in
the United States and to maintain accountability for its assets and liabilities, (C) access
to its assets or incurrence of liabilities is permitted only in accordance with
management’s general or specific authorization and (D) the reported accountability for its
assets and liabilities is compared with existing assets and liabilities at reasonable
intervals and appropriate action is taken with respect to any differences.




               (xxxi) Conduct of Business. Neither the Company nor any of its Subsidiaries (i) is in
violation of its charter or by-laws or any certificate of designation, preferences or
rights of any other outstanding series of preferred stock of the Company (or similar
organizational documents), (ii) is in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the due performance or
observance of any term, covenant, condition or other obligation contained in any indenture,
mortgage, deed of trust, loan agreement, license or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over it or its property or assets
or has failed to obtain or maintain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property or to the
conduct of its business, except in the case of clauses (ii) and (iii), to the extent any
such conflict, breach, violation or default would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect. During the two (2) years prior to the date
hereof, (i) the Common Stock has been designated for quotation on the Principal Market,
(ii) trading in the Common Stock has not been suspended by the Commission or the Principal
Market and (iii) the Company has received no communication, written or oral, from the
Commission or the Principal Market regarding the suspension or delisting of the Common
Stock from the Principal Market.




               (xxxii) Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries,
nor any director, officer, agent, employee or other Person associated with or acting on
behalf of the Company or any of its Subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift,



19









 







entertainment or other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.




               (xxxiii) Environmental Laws. The Company and each of its Subsidiaries are, and at all
times prior were, (i) in compliance with any and all applicable federal, state, local and
foreign laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other
legal requirements relating to the protection of human health and safety, the environment,
natural resources or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), which compliance includes obtaining, maintaining and complying with
all permits and authorizations and approvals required by Environmental Laws to conduct
their respective businesses and (ii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except in the case of clause (i) or
(ii) where such non-compliance with or liability under Environmental Laws would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
and except as described in the Exchange Act Reports, neither the Company nor any of its
Subsidiaries has been named as a “potentially responsible party” under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, or any other
similar Environmental Law, except with respect to any matters that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect. Except as
described in the Exchange Act Reports, (A) none of the Company and its Subsidiaries is a
party to any proceeding under Environmental Laws in which a governmental authority is also
a party, other than such proceedings regarding which it is believed no monetary penalties
of $100,000 or more will be imposed, and (B) none of the Company and its Subsidiaries
anticipates material capital expenditures relating to Environmental Laws.




               (xxxiv) Placement Agent. The Company acknowledges that it has engaged Lazard Frères &
Co. LLC, as placement agent in connection with transactions contemplated hereby (the
“Agent”). Other than the Agent, neither the Company nor any of its Subsidiaries has
engaged any placement agent or other agent in connection with the transactions contemplated
hereby.




               (xxxv) Manipulation of Price. The Company has not, and to its knowledge no one acting
on its behalf has, directly or indirectly, (i) taken any action designed to or that has
constituted or that could reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company in connection with the offering of
the Securities, or (ii) other than actions taken by the Agent, sold, bid for, purchased, or
paid any compensation for soliciting purchases of, the Exchanged Debentures.



20









 






               (xxxvi) Internal Accounting and Disclosure Controls.




     (1) (x) The Company and each of its Subsidiaries have
established and maintain disclosure controls and procedures (as
such term is defined in Rule 13a-15 under the Exchange Act), (y)
such disclosure controls and procedures are designed to ensure
that the information required to be disclosed by the Company in
the reports they file or submit under the Exchange Act is
accumulated and communicated to management of the Company and its
Subsidiaries, including their respective principal executive
officers and principal financial officers, as appropriate, to
allow timely decisions regarding required disclosure to be made;
and (x) as of December 31, 2008 such disclosure controls and
procedures were effective in all material respects to perform the
functions for which they were established.




     (2) Since December 31, 2008, (x) the Company has not been
advised of (A) any significant deficiency in the design or
operation of internal controls that could adversely affect the
ability of the Company or any of its Subsidiaries to record,
process, summarize and report financial data, or any material
weaknesses in internal controls or (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the internal controls of the Company and each
of its Subsidiaries, and (y) since that date, there have been no
significant changes in internal controls or in other factors that
could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses.




               (xxxvii) Subsidiaries. The Company or one of its Subsidiaries has the unrestricted
right to vote the stock of the Company’s Subsidiaries, and, except as set forth in the
Exchange Act Reports, no Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other distribution on
such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such Subsidiary’s property or
assets to the Company or any other Subsidiary of the Company.




               (xxxviii) Sarbanes-Oxley Act. There is and has been no failure on the part of the
Company to comply with the provisions of the Sarbanes-Oxley Act of 2002, as amended and the
rules and regulations promulgated in



21









 







connection therewith, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




               (xxxix) OFAC. Neither the Company nor any of its Subsidiaries nor, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any
of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company has not
and will not lend, contribute or otherwise make available funds to any Subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of
any person which, to the knowledge of the Company, was, at the time of such transaction,
subject to any U.S. sanctions administered by OFAC.




               (xl) Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other
than income or similar taxes) which are required to be paid in connection with transactions
contemplated hereby, including, without limitation, the Exchange and the conversion of the
Exchanged Debentures into the Exchanged Conversion Shares in the manner contemplated by the
Exchanged Indenture, will be, or will have been, fully paid or provided for by the Company,
and all laws imposing such taxes will be or will have been complied with.




               (xli) U.S. Real Property Holding Corporation. The Company is not, has never been, and
so long as any Exchanged Debentures remain outstanding, shall not become a U.S. real
property holding corporation within the meaning of Section 897 of the Internal Revenue Code
of 1986, as amended, and the Company shall so certify upon Investor’s request.




               (xlii) Intellectual Property Rights. The Company and its Subsidiaries own or possess
adequate rights or licenses to use all trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, original works of authorship, trade secrets and
other intellectual property rights and all applications related thereto (“Intellectual
Property Rights”) necessary to conduct their respective businesses as now conducted. None
of the Company’s or its Subsidiaries’ Intellectual Property Rights have expired, terminated
or been abandoned, or are expected to expire, terminate or be abandoned, within three years
from the date of this Agreement, except where such expiration, termination or abandonment
would not reasonably be expected to have a Material Adverse Effect. The Company does not
have any knowledge of any infringement by the Company or any of its Subsidiaries of
Intellectual Property Rights of others. There is no claim, action or proceeding being made
or brought, or to the knowledge of the Company, being threatened, against the Company or
any of its Subsidiaries regarding its Intellectual Property Rights. The Company is unaware
of any facts or circumstances which might give rise to any of the foregoing infringements
or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their
Intellectual Property Rights.



22









 






               (xliii) Indebtedness and Other Contracts. Except as set forth in the Exchange Act
Reports, neither the Company nor any of its Subsidiaries (i) has any outstanding
Indebtedness individually in excess of $500,000, or in the aggregate in excess of
$1,000,000, (ii) is in violation of any term of or in default under any contract, agreement
or instrument relating to any Indebtedness, other than the Original Documents, except where
such violations and defaults would not result, individually or in the aggregate, in a
Material Adverse Effect, or (iii) is a party to any contract, agreement or instrument
relating to any Indebtedness, the performance of which, in the judgment of the Company’s
officers, has or would reasonably be expected to have, a Material Adverse Effect.




               (xliv) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or
affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and
to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls,
directly or indirectly, five percent or more of the outstanding shares of any class of
voting securities or twenty-five percent or more of the total equity of a bank or any
entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the
Company nor any of its Subsidiaries or affiliates exercises a controlling influence over
the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.




               (xlv) Application of Takeover Protections; Rights Agreement. As of the Closing Date,
the Company has no control share acquisition, business combination, poison pill (including
distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or any certificates of designations or the laws of the State
of Delaware which is applicable to the Investor (other than with respect to the limitations
on ownership of the Common Stock set forth in the Certificate of Incorporation relating to
the Shipping Act of 1916, as amended) as a result of the transactions contemplated by this
Agreement, including without limitation, the Company’s issuance of the Securities and the
Investor’s ownership of the Securities. The Company does not presently have a stockholder
rights plan or similar arrangement relating to accumulations of beneficial ownership of
Common Stock or a change in control of the Company (a “Rights Plan”).




               (xlvi) Dilutive Effect. The Company understands and acknowledges that the number of
Exchanged Conversion Shares issuable upon conversion of the Exchanged Debentures will
increase in certain circumstances. The Company further acknowledges that any dilutive
effect that the issuance of the Exchanged Conversion Shares upon conversion of the
Exchanged Debentures in accordance with this Agreement and the Exchanged Indenture may have
on the ownership interests of other stockholders of the Company shall have no effect on the
Company’s obligation to issue Exchanged Conversion Shares upon conversion of the Exchanged
Debentures in accordance with this Agreement and the Exchanged Indenture.



23









 






               (xlvii) Acknowledgment Regarding Investor’s Exchange of Securities. The Company
acknowledges and agrees that the Investor is acting solely in the capacity of an arm’s
length investor with respect to the Investor Transaction Documents and the transactions
contemplated hereby and thereby and that no Participating Investor is (i) an officer or
director of the Company or (ii) assuming the representations and warranties given by each
Participating Investor under Section 2(a)(x) of this Agreement and the Other Agreements are
correct and true, an “affiliate” of the Company or any of its Subsidiaries (as defined in
Rule 144). The Company further acknowledges that the Investor is not acting as a financial
advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity)
with respect to this Agreement, the Security Documents, the Exchanged Indenture or the
Exchanged Debentures (collectively, the “Transaction Documents”) and the transactions
contemplated hereby and thereby, and any advice given by the Investor or any of its
representatives or agents in connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the Investor’s purchase of the
Securities. The Company further represents to the Investor that the Company’s decision to
enter into the Transaction Documents has been based solely on the independent evaluation by
the Company and its representatives.




               (xlviii) Off Balance Sheet Arrangements. There is no transaction, arrangement, or
other relationship between the Company and an unconsolidated or other off balance sheet
entity that is required to be disclosed by the Company in its Exchange Act filings and is
not so disclosed or that otherwise would be reasonably likely to have a Material Adverse
Effect.




               (xlix) Certificates. Any certificate signed by any officer of the Company and
delivered to the Investor or its counsel in connection with the transactions contemplated
hereby shall be deemed a representation and warranty by the Company, as to matters covered
thereby, to the Investor.




               (l) Disclosure. Other than such information set forth in the 8-K Filing (as defined
below), the Company confirms that neither it nor any other Person acting on its behalf has
provided the Investor or its agents or counsel with any information that constitutes or
could reasonably be expected to constitute material, nonpublic information. The Company
understands and confirms that the Investor will rely on the foregoing representations in
effecting transactions in securities of the Company. All disclosure provided to the
Investor regarding the Company and its Subsidiaries, their business and the transactions
contemplated hereby, including the Schedules to this Agreement, furnished by or on behalf
of the Company, taken on the whole, is true and correct in all material respects and does
not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. No event or circumstance has occurred or
information exists with respect to the Company or any of its Subsidiaries or either of
their respective businesses,



24









 







properties, prospects, operations or financial conditions, which, under applicable
law, rule or regulation, requires public disclosure or announcement by the Company but
which has not been so publicly announced or disclosed.




               (li) Reasonable Best Efforts. The Company shall use its reasonable best efforts
timely to satisfy each of the conditions to be satisfied by it as provided in Sections 3
and 4 of this Agreement.




               (lii) Financial Information. For so long as any Securities remain outstanding and are
“restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the
Company will, during any period in which it is not subject to Section 13 or 15(d) under the
Exchange Act, make available to the Investor and any holder of Securities in connection
with any sale thereof and any prospective purchaser of Securities and securities analysts,
in each case upon request, the information specified in, and meeting the requirements of,
Rule 144A(d)(4) under the Securities Act (or any successor thereto).




               (liii) No Event of Default. The Company represents and warrants to the Investor that
after giving effect to the terms of this Agreement and the Other Agreements, no Default or
Event of Default (as defined in the Exchanged Indenture) shall have occurred and be
continuing as of the date hereof.




               (liv) Holding Period. For the purposes of Rule 144(d), the Company acknowledges that
the holding period of the Existing Debentures (including the corresponding Existing
Conversion Shares) may be tacked onto the holding period of the Exchanged Common Shares and
the Exchanged Debentures (including the corresponding Exchanged Conversion Shares). The
Company agrees to take all actions, including, without limitation, the issuance by its
legal counsel of any necessary legal opinions, necessary to issue Exchanged Common Shares
and Exchanged Conversion Shares that are freely tradable on the Principal Market without
restriction and not containing any restrictive legend without the need for any action by
the Investor; provided, however, that the Investor has duly executed and delivered to the
Company a representation letter in the form attached hereto as Schedule III and the
Company is not aware of any facts or circumstances indicating the Investor has not met all
applicable requirements of Rule 144.




               (lv) Listing. The Company shall promptly secure the listing of all of (i) the
Exchanged Common Shares, (ii) the Exchanged Conversion Shares, (iii) the Exchanged Warrant
Shares and (iv) any capital stock of the Company issued or issuable with respect to the
Exchanged Common Shares, the Exchanged Debentures, the Exchanged Conversion Shares or the
Exchanged Warrant Shares, as applicable, as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any limitations
on conversion of the Exchanged Debentures (the “Listed Securities”) upon each national
securities exchange and automated quotation system, if any,



25









 







upon which the Common Stock is then listed (subject to official notice of issuance)
and shall maintain such listing of all Listed Securities from time to time issuable under
the terms of the Transaction Documents. The Company will use its reasonable best efforts to
maintain the Common Stock’s authorization for quotation on the Principal Market. The
Company will, and will cause its Subsidiaries to, use its reasonable best efforts to avoid
any action which would be reasonably expected to result in the delisting or suspension of
the Common Stock on the Principal Market. Notwithstanding the foregoing, this Section
2(c)(lv) shall not apply in connection with any Fundamental Change (as defined in the
Exchanged Indenture) so long as the Company complies with the terms and conditions of the
Exchanged Indenture with respect to the applicable Fundamental Change. The Company shall
pay all fees and expenses satisfying its obligation under this section.




               (lvi) Fees and Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company shall pay or cause
to be paid all costs and expenses incident to the performance of its obligations hereunder,
including without limitation, all fees, costs and expenses (A) incident to the preparation,
issuance, execution, authentication and delivery of the Securities, including any expenses
of the Trustee, (ii) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of such
jurisdictions as the Investor may reasonably designate, (iii) in connection with the
admission of the Debentures for trading in the Private Offerings, Resales and Trading
through Automated Linkages (PORTAL) MarketSM (“PORTAL”) of the National
Association of Securities Dealers, Inc. (“NASD”), (iv) related to any filing with the
Financial Industry Regulatory Authority and (v) in connection with satisfying its
obligations under Section 2(c)(l).




               (lvii) Reporting Status. Until the date on which the Investor has sold all of the
Exchanged Common Shares, the Exchanged Conversion Shares and the Exchanged Warrant Shares,
and none of the Exchanged Debentures is outstanding, the Company shall timely file all
reports required to be filed with the Commission pursuant to the Exchange Act, and the
Company shall not terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations thereunder would no
longer require or otherwise permit such termination. Notwithstanding the foregoing, this
Section 2(c)(lvii) shall not apply in connection with any Fundamental Change (as defined in
the Exchanged Indenture).




               (lviii) No Integration Actions. None of the Company, any of its affiliates (as defined
in Rule 501(b) under the Securities Act) or any person acting on behalf of the Company or
such affiliate will sell, offer for sale or solicit offers to buy in respect of any
security (as defined in the Securities Act) that would be integrated with the transactions
contemplated hereby, including, without limitation, the Exchange, the conversion of the
Exchanged Debentures



26









 







into the Exchanged Conversion Shares in the manner contemplated by the Exchanged
Indenture and the exercise of the Exchanged Warrants for the Exchanged Warrant Shares, in a
manner that would require the registration under the Securities Act of the transactions
contemplated hereby or require equityholder approval under the rules and regulations of the
Principal Market and the Company will take all action that is appropriate or necessary to
assure that its offerings of other securities will not be integrated for purposes of the
Securities Act or the rules and regulations of the Principal Market with the transactions
contemplated hereby, including, without limitation, the Exchange and the conversion of the
Exchanged Debentures into the Exchanged Conversion Shares in the manner contemplated by the
Exchanged Indenture.




               (lix) Pledge of Securities. The Company acknowledges and agrees that the Securities
may be pledged by the Investor in connection with a bona fide margin agreement or other
loan or financing arrangement that is secured by the Securities. The pledge of Securities
shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and
the Investor effecting a pledge of Securities shall not be required to provide the Company
with any notice thereof or otherwise make any delivery to the Company pursuant to this
Agreement or any other Transaction Document. The Company hereby agrees to execute and
deliver such documentation as a pledgee of the Securities may reasonably request in
connection with a pledge of the Securities to such pledgee by the Investor.




               (lx) Public Information. At any time during the period commencing on the Closing Date
and ending on May 16, 2009, if a registration statement is not available for the resale of
all of the Securities and the Company shall fail for any reason to satisfy the current
public information requirement under Rule 144(c)(1) (a “Public Information Failure”) then,
as partial relief for the damages to any holder of Securities by reason of any such delay
in or reduction of its ability to sell the Securities (which remedy shall not be exclusive
of any other remedies available at law or in equity), the Company shall pay to each such
holder an amount in cash equal to one-half of one percent (0.5%) of the principal amount of
the Exchanged Debentures beneficially owned by such holder on the day of a Public
Information Failure. The payment to which a holder shall be entitled pursuant to this
section is referred to herein as a “Public Information Failure Payment.” A Public
Information Failure Payment shall be paid on the last day of the calendar month during
which such Public Information Failure Payment is incurred. In the event the Company fails
to make Public Information Failure Payments in a timely manner, the unpaid portion of such
Public Information Failure Payments shall bear interest at the rate of 1.5% per month
(prorated for partial months) until paid in full.




               (lxi) Existing Debentures Remaining Outstanding. Immediately following the Exchange,
not more than $1 million in aggregate principal amount of the Existing Debentures will
remain outstanding.



27









 






               (lxii) Security Documents. The Security Documents create or will create in favor of
Wells Fargo Bank, National Association, as Trustee, for the benefit of the holders of the
Exchanged Debentures a legal, valid and enforceable second priority security interest in
and Lien on all right, title and interest of the Company and each Guarantor in the
Collateral described therein, subject to no other Liens (as defined in the Exchanged
Indenture) other than Permitted Liens (as defined in the Exchanged Indenture).




               (lxiii) Most Favored Nation. The Company hereby represents and warrants and covenants
and agrees as of the date hereof that none of the terms offered to any of the Participating
Investors with respect to any amendment, settlement or waiver (each a “Settlement
Document”) relating to the terms, conditions and transactions contemplated hereby, is more
favorable to such Person than those of the Investor and, if the foregoing representation,
warranty, covenant and agreement has been breached, then this Agreement shall be, without
any further action by the Investor or the Company, deemed amended and modified in an
economically and legally equivalent manner such that the Investor shall receive the benefit
of the more favorable terms contained in such Settlement Document. The Company hereby
represents and warrants as of the date hereof that the Other Agreements are identical to
this Agreement other than for the Proportionate Changes. Notwithstanding the foregoing, the
Company has agreed to pay certain legal fees of Schulte Roth & Zabel LLP and Watson Farley
& Williams.




               (lxiv) Additional Debentures; Variable Securities. For so long as any Exchanged
Debentures remain outstanding, the Company will not issue any Exchanged Debentures other
than to the Participating Investors as contemplated hereby and the Company shall not issue
any other securities that would cause a breach or default under the Exchanged Debentures.
From and after the date hereof and for so long as any Exchanged Debentures remain
outstanding, the Company shall not, in any manner, issue or sell any rights, warrants or
options to subscribe for or purchase Common Stock or directly or indirectly convertible
into or exchangeable or exercisable for Common Stock at a price which varies or may vary
with the market price of the Common Stock, including by way of one or more reset(s) to any
fixed price unless the conversion, exchange or exercise price of any such security cannot
be less than the then applicable Conversion Price (as defined in the Exchanged Debentures)
with respect to the Common Stock into which any Exchanged Debenture is convertible;
provided, however, that solely for purposes of clarification, the parties hereto
acknowledge and agree that the foregoing shall not apply solely to the participation by any
employee, officer or director of the Company or any of its Subsidiaries in any Approved
Share Plan but shall apply to any issuance of securities pursuant to any such Approved
Share Plan; provided further, that the reference in this sentence to the issuance or sale
of any rights, warrants or options is not intended to restrict the Company from entering
into an agreement for the sale of securities where the fixed price relating to such
security is determined at the closing of the applicable transaction and such closing is to
occur after the Company enters into such agreement.



28









 






               (lxv) Reservation of Shares. The Company shall take all action necessary to at all
times have authorized, and reserved for the purpose of issuance, free of pre-emptive
rights, after the Closing Date, a number of shares of Common Stock sufficient for the
purpose of enabling the Company to satisfy all obligations to issue the Exchanged
Conversion Shares upon conversion of all of the Exchanged Debentures and the Exchanged
Warrant Shares upon exercise of all of the Exchanged Warrants.




               (lxvi) Regulation M. The Company will not take any action prohibited by Regulation M
under the Exchange Act, in connection with the distribution of the Securities contemplated
hereby.




               (lxvii) PORTAL. The Company will use its reasonable best efforts to cause the
Exchanged Debentures to be designated as PORTAL securities in accordance with the rules and
regulations adopted by the Financial Industry Regulatory Authority (“FINRA”) relating to
trading in PORTAL and to permit the Securities to be eligible for clearance and settlement
through DTC.




               (lxviii) No Resale. The Company will not, and will use its reasonable best efforts to
not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Securities that have been acquired by any of them, except for Securities
purchased by the Company or any of its affiliates and resold in a transaction registered
under the Securities Act.




               (lxix) Book Entry Transfer. The Company agrees to comply with all the terms and
conditions of all agreements set forth in the representation letters of the Company to DTC,
in each case relating to the approval of the Exchanged Debentures, the Exchanged Conversion
Shares and the Exchanged Warrant Shares by DTC for “book entry” transfer.




               (lxx) Investment Company Actions. The Company will take such steps as shall be
necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes
an “investment company” within the meaning of such term under the Investment Company Act of
1940, as amended.




               (lxxi) Additional Issuances of Securities.




               (1) For purposes of this Section 2(c)(lxxi), the following definitions shall
apply.




               (A) “Convertible Securities” means any stock or securities (other
than Options) convertible into or exercisable or exchangeable for shares
of Common Stock.




               (B) “Options” means any rights, warrants or options to subscribe for
or purchase shares of Common Stock or Convertible Securities.



29









 






               (C) “Common Stock Equivalents” means, collectively, Options and
Convertible Securities.




               (D) “Subsequent Placement” means the offer, sale, grant of any option
to purchase, or other disposition by the Company of any of its or its
Subsidiaries’ equity or equity equivalent securities, including, without
limitation, any debt, preferred stock or other instrument or security that
is, at any time during its life and under any circumstances, convertible
into or exchangeable or exercisable for shares of Common Stock or Common
Stock Equivalents.




               (2) The Company will not, directly or indirectly, effect any Subsequent
Placement (x) until July 3, 2009, with respect to any Subsequent Placement in which
the price per share (or, in the case of equity equivalent securities, the initial
conversion price) of Common Stock offered thereby is more than the then applicable
Conversion Price and (y) until July 3, 2010, with respect to any Subsequent
Placement in which the price per share (or, in the case of equity equivalent
securities, the initial conversion price) of Common Stock offered thereby is less
than the then applicable Conversion Price, unless the Company shall have first
complied with this Section 2(c)(lxxi)(2).




               (A) The Company shall deliver to each Participating Investor an
irrevocable written notice (the “Offer Notice”) of any proposed or
intended issuance or sale or exchange (the “Offer”) of the securities
being offered (the “Offered Securities”) in a Subsequent Placement, which
Offer Notice shall (x) identify and describe the Offered Securities,
(y) describe the price and other terms upon which they are to be issued,
sold or exchanged, and the number or amount of the Offered Securities to
be issued, sold or exchanged, and (z) offer to issue and sell to or
exchange with such Participating Investors in the aggregate up to thirty
five percent (35%) of the Offered Securities, allocated among such
Participating Investors based on such Participating Investor’s pro rata
portion of the aggregate principal amount of the Exchanged Debentures
issued hereunder (the “Basic Amount”). If any Participating Investors
subscribe for less than their Basic Amount, then the Company shall give
the Participating Investors who subscribed for their Basic Amount written
notice of such excess Offered Securities (a “Supplemental Offer Notice”)
and allow each Participating Investor who elected to purchase its Basic
Amount the opportunity to purchase the excess Offered Securities (the
“Undersubscription Amount”).




               (B) To accept an Offer, in whole or in part, such Participating
Investor must deliver a written notice (the



30









 






“Notice of Acceptance”) to the Company prior to the end of the fifth
(5th) Business Day after such Participating Investor’s receipt
of the Offer Notice or the end of the second (2nd) business Day
after such Participating Investors’ receipt of any Supplemental Offer
Notice (such periods in the aggregate, the “Offer Period”), setting forth
the portion of such Participating Investor’s Basic Amount that such
Participating Investor elects to purchase and, if such Participating
Investor shall elect to purchase all of its Basic Amount, the
Undersubscription Amount, if any, that such Participating Investor elects
to purchase; provided, however, that if the Undersubscription Amounts
subscribed for exceed the difference between the total of all the Basic
Amounts permitted to be subscribed for and the Basic Amounts subscribed
for (the “Available Undersubscription Amount”), then each Participating
Investor who has subscribed for any Undersubscription Amount shall be
entitled to purchase only that portion of the Available Undersubscription
Amount as the Basic Amount of such Participating Investor bears to the
total Basic Amounts of all Participating Investors that have subscribed
for Undersubscription Amounts, subject to rounding by the Company to the
extent it deems reasonably necessary. The Basic Amounts and the
Undersubscription Amounts which each Participating Investor is entitled to
purchase shall be, in the aggregate, the “Subscribed Securities” (subject
to adjustment pursuant to Section 2(c)(lxxi)(2)(D) below).
Notwithstanding the foregoing, if the Company desires to modify or amend
the terms and conditions of the Offer prior to the expiration of the Offer
Period, the Company may deliver to the Participating Investors a new Offer
Notice and the Offer Period shall expire on the third (3rd)
Business Day after such Participating Investor’s receipt of such new Offer
Notice.




               (C) The Company shall have thirty (30) Business Days from the
expiration of the Offer Period above (i) to offer, issue, sell or exchange
all or a portion of the Offered Securities, less the Subscribed Securities
(the “Subsequent Placement Securities”), pursuant to a definitive
agreement(s) (the “Subsequent Placement Agreement”), but only upon terms
and conditions (including, without limitation, unit prices and interest
rates) that are not more favorable to the acquiring person or persons or
less favorable to the Company than those set forth in the Offer Notice,
(ii) if and to the extent the Subsequent Placement and the execution of
any Subsequent Placement Agreement constitutes material information with
respect to the Company, to file with the Commission a Current Report on
Form 8-K in the time period required under the Exchange Act and containing
such material information and exhibits thereto as are required by the
Exchange Act, and to issue any press release the Company may choose to



31









 







issue regarding the transaction and (iii) if the Form 8-K described
in Section 2(c)(lxxi)(2)(C)(ii) above is not filed, to confirm in writing
to the Participating Investors that neither the Company, any of its
Subsidiaries or any of its respective officers, directors, employees and
agents has provided the Investor or its agents or counsel with any
information that constitutes material, nonpublic information.




               (D) In the event the Company shall determine to issue, sell or
exchange less than all of the Subsequent Placement Securities (any such
sale to be in the manner and on the terms specified in Section
2(c)(lxxi)(2)(C) above), then the Company shall, not less than one
Business Day prior to the consummation of such issuance, sale or exchange,
so notify each Participating Investor, and each Participating Investor
may, at its sole option and in its sole discretion at any time prior to
the consummation of such issuance, sale or exchange, notify the Company of
its election to reduce the number or amount of the Offered Securities
specified in its Notice of Acceptance to an amount that shall be not less
than the number or amount of the Offered Securities that such
Participating Investor elected to purchase pursuant to Section
2(c)(lxxi)(2)(B) above multiplied by a fraction, (i) the numerator of
which shall be the number or amount of Subsequent Placement Securities the
Company actually determined to issue, sell or exchange, plus the number or
amount of Subscribed Securities to be issued or sold pursuant to Section
2(c)(lxxi)(2)(C) above (prior to any reduction pursuant to this clause),
and (ii) the denominator of which shall be the original amount of the
Offered Securities. In the event that any Participating Investor so
elects to reduce the number or amount of Offered Securities specified in
its Notice of Acceptance, such reduced number shall thereafter constitute
such Participating Investor’s Subscribed Securities.




               (E) Upon the closing of the issuance, sale or exchange of all or less
than all of the Subsequent Placement Securities, the Participating
Investors shall acquire from the Company, and the Company shall issue to
the Participating Investors, the Subscribed Securities. The purchase by
the Participating Investors of any Offered Securities is subject in all
cases to the preparation, execution and delivery by the Company and the
Participating Investors of a purchase agreement relating to such Offered
Securities reasonably satisfactory in form and substance to the
Participating Investors and their respective counsel.



32









 






               (F) Notwithstanding anything to the contrary contained in this
Agreement, if the Company does not consummate the closing of the
Subsequent Placement within thirty (30) Business Days of the expiration of
the Offer Period, then the offer to, and any acceptance by, the
Participating Investors pursuant to this Section 2(c)(lxxi) shall be
deemed null and void, and Company shall not issue or sell any of the
Offered Securities until such securities have again been offered to the
Participating Investors in accordance with Section 2(c)(lxxi)(2)(A) above.
Further, if the Company shall determine to issue, sell or exchange less
than all of the Subsequent Placement Securities pursuant to Section
2(c)(lxxi)(2)(D) above, then until such securities have again been offered
to the Participating Investors in accordance with Section 2(c)(lxxi)(2)(A)
above, the Company shall not issue, sell or exchange any of the Offered
Securities that it so determined not to issue, sell or exchange, or any of
the Subscribed Securities that any Participating Investor determined not
to purchase pursuant to Section 2(c)(lxxi)(2)(D) above. Notwithstanding
anything to the contrary in this Section 2(c)(lxxi) and unless otherwise
agreed to by the Participating Investors, not later than the thirtieth
(30th) Business Day following delivery to the Participating Investors of
the Offer Notice, the Company shall either (i) confirm in writing to the
Participating Investors that the Subsequent Placement has been abandoned,
(ii) make such public disclosures as are required such that the
Participating Investors will not be in possession of material non-public
information relating to such Subsequent Placement or (iii) confirm in
writing that neither the Company, any of its Subsidiaries or any of its
respective officers, directors, employees and agents has provided the
Participating Investors or their agents or counsel with any information
that constitutes material, nonpublic information. If by the thirtieth
(30th) Business Day following delivery of an Offer Notice no public
disclosure regarding the Subsequent Placement has been made, and no notice
regarding the abandonment of such transaction has been received by the
Participating Investors, then such Subsequent Placement shall be deemed to
have been abandoned and the Participating Investors shall not be deemed to
be in possession of any material, non-public information with respect to
the Company, and the Company shall not issue or sell any of the Offered
Securities until such securities have again been offered to the
Participating Investors in accordance with Section 2(c)(lxxi)(2)(A) above.
The Company shall not be permitted to deliver more than one Offer Notice
to the Participating Investors in any 60 day period.




               (G) The Company and the Participating Investors agree that if any
Participating Investor elects to participate in the Offer, (x) neither the
Subsequent Placement



33









 







Agreement with respect to such Offer nor any other transaction
documents related thereto (collectively, the “Subsequent Placement
Documents”) shall include any term or provisions not otherwise required by
law whereby any Participating Investor shall be required to agree to any
restrictions in trading as to any securities of the Company owned by such
Participating Investor prior to such Subsequent Placement, and (y) any
registration rights set forth in such Subsequent Placement Documents shall
be similar in all material respects to the registration rights contained
in the Registration Rights Agreement.



          The restrictions contained in subsection (2) of this Section 2(c)(lxxi) shall not apply in
connection with the offer, sale, grant of any option to purchase or other disposition of any
Excluded Securities. As used herein, (x) “Excluded Securities” means any equity or equity
equivalent securities of the Company or any of its Subsidiaries issued or issuable: (A) in
connection with any Approved Share Plan; (B) in connection with any stock split, stock dividend,
recapitalization or similar transaction by the Company for which adjustment is made pursuant to
Section 10.05 or 10.06 of the Existing Indenture or the Exchanged Indenture; (C) upon conversion
of the Existing Debentures and the Exchanged Debentures; (D) in the transactions contemplated by
this Agreement; (E) pursuant to a bona fide firm commitment underwritten public offering with a
nationally recognized underwriter which generates gross proceeds to the Company of at least
$15,000,000 (other than an “at-the-market offering” as defined in Rule 415(a)(4) under the 1933 Act
and “equity lines”); (F) in connection with mergers, acquisitions, strategic business partnerships
or joint ventures, in each case with non-affiliated third parties and otherwise on an arm’s-length
basis, the primary purpose of which, in the reasonable judgment of the Company’s Board of
Directors, is not to raise additional capital; and (G) upon conversion of any Options or
Convertible Securities which are outstanding on the day immediately preceding the date of this
Agreement, provided that the terms of such Options or Convertible Securities are not amended,
modified or changed on or after the Closing Date; and (y) “Approved Share Plan” means any employee
benefit plan which has been approved by the Board of Directors of the Company, pursuant to which
the Company’s securities may be issued to any employee, officer or director for services provided
to the Company.




	 	3.	 	CONDITIONS TO COMPANY’S OBLIGATIONS HEREUNDER.





          The obligations of the Company to the Investor hereunder are subject to the satisfaction of
each of the following conditions, provided that these conditions are for the Company’s sole benefit
and may be waived by the Company at any time in its sole discretion by providing the Investor with
prior written notice thereof:



               (a) The Investor shall have executed this Agreement and delivered the same to the Company.



34









 





               (b) The Investor shall have delivered to the Company, pursuant to the Existing Indenture and
this Agreement, the Existing Exchanged Debentures being exchanged at the Closing.



               (c) The representations and warranties of the Investor in Sections 2(a) and 2(b) hereof shall
be true and correct in all respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a specific date,
which shall be true and correct as of such specified date only).




	 	4.	 	CONDITIONS TO THE INVESTOR’S OBLIGATIONS HEREUNDER.





          The obligations of the Investor to the Company hereunder are subject to the satisfaction of
each of the following conditions, provided that these conditions are for the Investor’s sole
benefit and may be waived by the Investor at any time in its sole discretion by providing the
Company with prior written notice thereof:



               (a) The Company shall have duly executed and delivered to the Investor (i) this Agreement and
(ii) the Security Documents to which it is a party.



               (b) The Company shall have duly executed and delivered to the Investor and the Company’s
transfer agent (the “Transfer Agent”) the DTC Instructions.



               (c) The Exchanged Common Shares, if any, being issued to the Investor at the Closing pursuant
to this Agreement shall have been deposited to the balance account of the Investor Broker at DTC in
accordance with Section 1(a) above.



               (d) The Exchanged Warrants, if any, being issued to the Investor at the Closing pursuant to
this Agreement shall have been delivered to the Investor in certificated form.



               (e) The Company shall have duly executed and delivered to the Trustee the Exchanged Indenture
and the Exchanged Debenture being issued to the Investor at the Closing pursuant to this Agreement
in accordance with Section 1(b) above.



               (f) The Exchanged Debentures shall have been approved for trading on PORTAL, subject only to
notice of issuance at or prior to the time of the Exchange.



               (g) The Trustee shall have executed and delivered the Exchanged Indenture, and the Investor
shall have received an original copy thereof, duly executed and delivered by the Trustee and the
Company.



               (h) The Trustee and the Existing Secured Lenders shall have executed and delivered the
Intercreditor Agreement, and the Investor shall have received



35









 







an original copy thereof, duly executed and delivered by the Trustee, the Existing Secured
Lenders and the Company.



               (i) The Company shall have delivered the Cash Consideration to the Investor by wire transfer,
in U.S. dollars and immediately available funds, in accordance with wire instructions delivered by
the Investor to the Company on or prior to the Closing Date.



               (j) Each of the Other Investors shall have (i) executed the Other Agreements, (ii) satisfied
or waived all conditions to the closings contemplated by such agreements and (iii) surrendered to
the Company such principal amount of their Existing Debentures being exchanged at the Closing.



               (k) The Investor shall have received (i) the opinion of Vinson & Elkins LLP, the Company’s
counsel, dated as of the Closing Date, in substantially the form of Exhibit K-1 attached
hereto; (ii) the opinion of the General Counsel of the Company, dated as of the Closing Date, in
substantially the form of Exhibit K-2 attached hereto; (iii) the opinion of Royston,
Rayzor, Vickery & Williams, L.L.P., dated as of the Closing Date, in substantially the form of
Exhibit K-3 attached hereto; and (iv) the opinion of Alick Lawrence Chambers, dated as of
the Closing Date, in substantially the form of Exhibit K-4 attached hereto.



               (l) The Company shall have delivered to the Investor a certificate, executed by the Secretary
of the Company and dated as of the Closing Date, as to (i) the resolutions relating to this
Agreement and the transactions contemplated hereby, as adopted by the Company’s Board of Directors,
(ii) the Certificate of Incorporation and (iii) the Bylaws, in the case of clause (ii) and (iii),
each as in effect at the Closing, and in any case in the form attached hereto as Exhibit L.



               (m) The representations and warranties of the Company set forth herein shall be true and
correct in all respects as of the date when made and as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a specific date, which shall be
true and correct as of such specified date only) and the Company shall have performed, satisfied
and complied in all material respects with the covenants, agreements and conditions required by
this Agreement and the Transaction Documents to be performed, satisfied or complied with by the
Company at or prior to the Closing Date. The Investor shall have received a certificate, executed
by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing
Date, to the foregoing effect in the form attached hereto as Exhibit M.



               (n) The Company shall have obtained all governmental, regulatory or third party consents and
approvals, if any, necessary for the transactions contemplated hereby.



               (o) The Common Stock (I) shall be designated for quotation or listed on the Principal Market
and (II) shall not have been suspended, as of the Closing Date, by the Commission or the Principal
Market from trading on the Principal Market



36









 







nor, except as set forth in the Company’s filings with the Commission, shall suspension by the
Commission or the Principal Market have been threatened, as of the Closing Date, either (A) in
writing by the Commission or the Principal Market or (B) by falling below the minimum listing
maintenance requirements of the Principal Market.



               (p) On or prior to the Closing, the Company shall have delivered or caused to be delivered to
the Investor and the Trustee true copies of UCC search results in the state of organization for
each of the Company and its Subsidiaries that are party to the Guarantees, listing all effective
financing statements which name as debtor the Company or any of its Subsidiaries party to the
Guarantees, filed in the prior five years to perfect an interest in any assets thereof, together
with copies of such financing statements, none of which, except as otherwise relating to Permitted
Liens (as defined in the Exchanged Indenture) or agreed in writing by the Trustee, shall cover any
of the Collateral (as defined in the Security Documents) and the results of searches for any tax
lien and judgment lien filed against such Person or its property, which results, except as
otherwise agreed to in writing by the Trustee, shall not show any such Liens (as defined in the
Security Documents).



               (q) On or prior to the Closing, the Company shall have delivered to Schulte Roth & Zabel LLP,
with a copy to the Collateral Agent, appropriate financing statements on Form UCC-1 to be duly
filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent,
desirable to perfect the security interests purported to be created by each Security Document.



               (r) Trico Marine Assets, Inc. shall have duly authorized, executed and delivered to Wells
Fargo Bank, National Association, in its capacity as Trustee, the Assignments of Earnings,
Assignments of Insurances and Assignments of Charters.



               (s) Trico Marine Assets, Inc. shall have duly authorized, executed and delivered to Wells
Fargo Bank, National Association, in its capacity as Trustee, the Mortgages.



               (t) On or prior to the Closing, the Company and each Guarantor, as applicable, shall have
delivered to the Collateral Agent with respect to each Mortgaged Vessel (i) certificates of
ownership and encumbrance or certificates of documentation from appropriate authorities showing the
registered ownership of each Mortgaged Vessel by Trico Marine Assets, Inc. and (ii) class
certificates from a classification society listed on Schedule IV hereto certifying that
each Mortgaged Vessel is classed in the highest classification and rating for vessels of the same
age and type and without any outstanding conditions or recommendations affecting class (other than
those for which the time for curing the condition or recommendation has not passed).



               (u) The Company shall have delivered to the Investor such other documents relating to the
Exchange as the Investor or its counsel may reasonably request.



37









 






	 	5.	 	TERMINATION.





               (a) In the event the Closing does not occur by 12:00 p.m. New York City time on May 15, 2009,
this Agreement shall automatically terminate and be of no further force and effect.




	 	6.	 	MISCELLANEOUS.





               (a) Disclosure of Transactions and Other Material Information. On or before 8:30
a.m., New York City time, on the first Business Day following the date of this Agreement (the “8-K
Filing Time”), the Company shall file a Current Report on Form 8-K describing the terms of the
transactions contemplated hereby in the form required by the 1934 Act and attaching the material
Transaction Documents that have not previously been filed with the Commission by the Company
(including, without limitation, the form of this Agreement and the Other Agreements and the form of
the Exchanged Debentures) as exhibits to such filing (including all attachments, the “8-K Filing”).
From and after the filing of the 8-K Filing with the Commission, the Investor shall not be in
possession of any material, nonpublic information received from the Company, any of its
Subsidiaries or any of its respective officers, directors, employees or agents, that is not
disclosed in the 8-K Filing. The Company shall not, and shall cause each of its Subsidiaries and
its and each of their respective officers, directors, employees and agents, not to, provide the
Investor with any material, nonpublic information regarding the Company or any of its Subsidiaries
from and after the 8-K Filing with the Commission without the express written consent of the
Investor. Subject to the foregoing, neither the Company nor the Investor shall issue any press
releases or any other public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior approval of the Investor,
to make any press release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required
by applicable law and regulations including the NASDAQ Marketplace Rules (provided that in the case
of clause (i) the Investor shall be consulted by the Company in connection with any such press
release or other public disclosure prior to its release). Without the prior written consent of any
the Investor, neither the Company nor any of its Subsidiaries or affiliates shall disclose the name
of the Investor in any filing, announcement, release or otherwise, unless such disclosure is
required by law, regulation or the Principal Market.



               (b) Blue Sky. If required, the Company, on or before the Closing Date, shall take
such action as the Company shall reasonably determine is necessary in order to obtain an exemption
for or to qualify the offer, exchange and issuance of the Securities to the Investor at the Closing
pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the
United States (or to obtain an exemption from such qualification), and shall provide evidence of
any such action so taken to the Investor on or prior to the Closing Date. The Company shall make
all filings and reports relating to the offer, exchange and issuance of the Securities required
under applicable securities or “Blue Sky” laws of the states of the United States following the
Closing Date.



38









 





               (c) Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



               (d) Closing Sets. As soon as is reasonably practicable after the Closing Date, the
Company agrees to deliver, or cause to be delivered, to the Investor and Schulte Roth & Zabel LLP
executed copies of this Agreement and any other document required to be delivered to any party
pursuant to Section 6 hereof or pursuant to any Other Agreement.



               (e) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, and not a
facsimile signature.



               (f) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.



               (g) Severability. If any provision of this Agreement is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that
would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of
such provision shall not affect the validity of the remaining provisions of this Agreement so long
as this Agreement as so modified continues to express, without material change, the original



39









 







intentions of the parties as to the subject matter hereof and the prohibited nature,
invalidity or unenforceability of the provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the parties or the practical realization of
the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good
faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid
provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or
unenforceable provision(s).



               (h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.



               (i) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.



               (j) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.



               (k) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns in accordance with the terms of
the Existing Securities Purchase Agreement.



               (l) Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); (iii) one Business Day after deposit with an overnight courier
service, or (iv) if the delivery methods set forth in (i), (ii) and (iii) above are unavailable,
upon the reasonable determination of the party making delivery of such notice, consent, waiver or
other communication, when another method of delivery that is reasonably likely to result in the
delivery of such notice, consent, waiver or other communication to the party meant to receive the
same is used, in each case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:



          If to the Company:





Trico Marine Services, Inc.

10001 Woodloch Forest Drive, Suite 610

The Woodlands, TX. 77380

Telephone: (281) 203-5700



40









 






Facsimile: (281) 203-5701

Attention: General Counsel



                    with a copy (for informational purposes only) to:




Vinson & Elkins LLP

First City Tower

1001 Fannin Street, Suite 2500

Houston, Texas 77002-6760

Telephone: 713.758.3884

Facsimile: 713.615.5967

Attention: Kevin P. Lewis



          If to an Investor, to its address and facsimile number set forth on the Schedule of Investors,
with copies to the Investor’s representatives as set forth on the Schedule of Investors



                    with a copy (for informational purposes only) to:




Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

Telephone: 212.756.2000

Facsimile: 212.593.5955

Attention: Eleazer N. Klein, Esq.



     or to such other address and/or facsimile number and/or to the attention of such other Person as
the recipient party has specified by written notice given to each other party five (5) days prior
to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission, (C) provided by an overnight courier service or (D)
given by the recipient of such notice, consent, waiver or other communication or provided by the
method of delivery used if the delivery methods in (i), (ii) and (iii) above are unavailable, shall
be rebuttable evidence of personal or other service, receipt by facsimile or receipt from an
overnight courier service, or other receipt by another method of delivery used in accordance with
clause (i), (ii), (iii) or (iv) above, respectively.



               (m) Remedies. The Investor shall have all rights and remedies set forth in this
Agreement, the Exchanged Debentures, and the Transaction Documents. Any Person having any rights
under any provision of this Agreement shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law. Furthermore, the
Company recognizes that in the event that it fails to perform, observe, or discharge any or all of
its obligations under this Agreement, any remedy at law may prove to be inadequate relief to the
Investor. The



41









 







Company therefore agrees that the Investor shall be entitled to seek temporary and permanent
injunctive relief in any such case without the necessity of proving actual damages and without
posting a bond or other security.



               (n) Survival. The representations and warranties of the Company and the Investor
contained in Section 2 and the agreements and covenants set forth in Sections 2 and 6 shall survive
the Closing and delivery and conversion of the Securities, as applicable.



               (o) Indemnification. In consideration of the Investor’s execution and delivery of the
Transaction Documents and acquiring the Securities thereunder and in addition to all of the
Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless the Investor and all of its stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or
other representatives (including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the “Indemnitees”), as incurred, from
and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is sought), and including
reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any
Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of
any representation or warranty made by the Company in the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit
or claim brought or made against such Indemnitee by a third party (including for these purposes a
derivative action brought on behalf of the Company) and arising out of or resulting from (i) the
execution, delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed
or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of
the Securities, (iii) any disclosure made by the Investor pursuant to Section 6(a), or (iv) the
status of the Investor or holder of the Securities as an investor in the Company pursuant to the
transactions contemplated by the Transaction Documents. To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. Except as otherwise set forth herein, the mechanics and
procedures with respect to the rights and obligations under this Section 6(o) shall be the same as
those set forth in Section 6 of the Registration Rights Agreement (as defined in the Existing
Securities Purchase Agreement).



               (p) Entire Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Investor, the Company, their affiliates and Persons acting on their
behalf with respect to the matters discussed



42









 







herein, and this Agreement, the Exchanged Debentures and the Transaction Documents contain the
entire understanding of the parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company nor the Investor makes any
representation, warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be amended other than by an instrument in writing signed by the Company and the
Investor, and no provision hereof may be waived other than by an instrument in writing signed by
the party against whom enforcement is sought; provided, however, notwithstanding any provision
herein to the contrary, at any time after the Closing Date, this Agreement shall be automatically
amended, without any action of or consent by the Investor, to conform the terms of this Agreement
to the terms of the Other Agreements upon their amendment by parties thereto holding in the
aggregate at least a majority of the then outstanding aggregate principal amount of the Exchanged
Debentures. The Company shall promptly provide written notice to the Investor of such amendment. No
consideration shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of this Agreement or the Other Agreements unless the same
consideration also is offered to all of the parties to this Agreement and the Other Agreements.



               (q) Independent Nature of Investor’s Obligations and Rights. The obligations of the
Investor under this Agreement or any other Transaction Document are several and not joint with the
obligations of any Other Investor, and the Investor shall not be responsible in any way for the
performance of the obligations of any Other Investor under any Transaction Document. Nothing
contained herein or in this Agreement or any other Transaction Document, and no action taken by the
Investor pursuant hereto, shall be deemed to constitute the Investor and the Other Investors as a
partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investor and the Other Investors are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by this Agreement or any other
Transaction Document and the Company acknowledges that the Participating Investors are not acting
in concert or as a group with respect to such obligations or the transactions contemplated by
Agreement and any other Transaction Document. The Company and the Investor confirm that the
Investor has independently participated in the negotiation of the transactions contemplated hereby
with the advice of its own counsel and advisors. The Investor shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this
Agreement or out of any other Transaction Document, and it shall not be necessary for any Other
Investor to be joined as an additional party in any proceeding for such purpose.



               (r) Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.



          “Business Day” shall mean any day other than Saturday, Sunday or other day on which commercial
banks in the City of New York are authorized or required by law to remain closed.



          “Commission” means the Securities and Exchange Commission.



43









 





          “Contingent Obligation” shall have the meaning as defined in the Exchanged Indenture.



          “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, including those set forth in (i) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants, (ii)
statements and pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the accounting profession,
and (iv) the rules and regulations of the Commission governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to be filed
pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of the Commission.



          “Indebtedness” shall have the meaning as defined in the Exchanged Indenture.



          “Interest Make-Whole” shall have the meaning as defined in the Exchanged Indenture.



          “Liens” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), preference, priority or other security agreement of any
kind or nature whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under the Uniform
Commercial Code or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).



          “Person” means an individual, a limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any department or agency
thereof.



          “Subsidiary” shall have the meaning as defined in the Exchanged Indenture.




	 	7.	 	AMENDMENT OF THE EXISTING SECURITIES PURCHASE
AGREEMENT





               (a) Amendment. Effective as of the date holders of a majority of the aggregate
principal amount of the Existing Debentures then outstanding have either executed this Agreement or
the Other Agreements, pursuant to Section 8(e) of the Existing Securities Purchase Agreement, the
Company and the Investor hereby agree to amend the Existing Securities Purchase Agreement as
follows:




               (i) Section 4 is hereby amended by adding the following introductory statement prior
to Section 4(a):



44









 






     “From and after the date hereof through and ending on the
Closing Date (as defined in the Exchange Agreements), the Company
covenants as follows:”




               (ii) Section 8(e) is hereby amended and restated as follows:




               (1) Entire Agreement; Amendments. This Agreement supersedes all other
prior oral or written agreements between the Purchasers, the Company, their
affiliates and Persons acting on their behalf with respect to the matters discussed
herein, and this Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and therein
and, except as specifically set forth herein or therein, neither the Company nor
any Purchaser makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be amended other than
by an instrument or instruments in writing signed by the Company and the Majority
Interest, and any amendment to this Agreement made in conformity with the
provisions of this Section 8(e) shall be binding on all Participating Investors and
the holders of the Debentures. No provision hereof may be waived other than by an
instrument in writing signed by the party against whom enforcement is sought. No
such amendment shall be effective to the extent that it applies to less than all of
the Participating Investors and the holders of the Debentures. No consideration
shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless the same
consideration also is offered to all of the parties to the Transaction Documents or
holders of Debentures, as the case may be. The Company has not, directly or
indirectly, made any agreements with any Purchasers relating to the terms or
conditions of the transactions contemplated by the Transaction Documents except as
set forth in the Transaction Documents.




               (iii) Section 8(f) is hereby amended and restated to read as follows:




               (1) Notices. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and kept
on file by the sending party); or (iii) one Business Day after deposit with an
overnight courier service, in each case properly addressed to the party to receive
the same. The addresses and facsimile numbers for such communications shall be:



45









 





          If to the Company:




Trico Marine Services, Inc.

10001 Woodloch Forest Drive, Suite 610

The Woodlands, Texas 77380

Telephone: (713) 780-9926

Facsimile: (713) 780-0062

Attention: General Counsel




with a copy (for informational purposes only) to:




Vinson & Elkins L.L.P.

First City Tower

1001 Fannin Street, Suite 2500

Houston, Texas 77002-6760

Telephone: (713) 758-3884

Facsimile: (713) 615-5967

Attention: Kevin P. Lewis



          If to a Participating Investor or a holder of the Debentures, to its address and facsimile
number set forth on the Schedule of Purchasers, with copies to such Purchaser or Beneficiary’s
representatives as set forth on the Schedule of Purchasers, with a copy (for informational purposes
only) to:




Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

Telephone: 212.756.2000

Facsimile: 212.593.5955

Attention: Eleazer N. Klein, Esq.



or to such other address and/or facsimile number and/or to the attention of such other Person as
the recipient party has specified by written notice given to each other party five (5) days prior
to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above, respectively.





               (iv) Section 8(g) is hereby amended and restated to read as follows:




               (1) Successors and Assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written consent
of the Majority Interest. Participating Investors and holders of the Debentures
may assign any or all of their rights hereunder to any Person without the consent
of the Company,



46









 







provided that such assignee executes a written agreement to be bound by the
terms and conditions of this Agreement (a “Permitted Assign”).




               (v) Section 8(k) is hereby amended and restated to read as follows:




               (1) Indemnification. In consideration of each Purchaser’s execution
and delivery of the Transaction Documents and acquiring the Securities thereunder
and in addition to all of the Company’s other obligations under the Transaction
Documents, the Company shall defend, protect, indemnify and hold harmless each
Participating Investor and holder of the Debentures and all of their stockholders,
partners, members, officers, directors, employees and direct or indirect investors
and any of the foregoing Persons’ agents or other representatives (including,
without limitation, those retained in connection with the transactions contemplated
by this Agreement) (collectively, the “Indemnitees”), as incurred, from and against
any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith (irrespective
of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements
(the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or
arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Company contained in the
Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby or (c) any cause of action, suit or claim brought or made against
such Indemnitee by a third party (including for these purposes a derivative action
brought on behalf of the Company) and arising out of or resulting from (i) the
execution, delivery, performance or enforcement of the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, (ii) any
transaction financed or to be financed in whole or in part, directly or indirectly,
with the proceeds of the issuance of the Securities, (iii) any disclosure made by
such Purchaser pursuant to Section 4(i), or (iv) the status of such Purchaser as an
investor in the Company pursuant to the transactions contemplated by the
Transaction Documents. To the extent that the foregoing undertaking by the Company
may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. Except as otherwise set forth herein,
the mechanics and procedures with respect to the rights and obligations under this
Section 8(k) shall be the same as those set forth in Section 6 of the Registration
Rights Agreement.



47









 






               (vi) Section 8(m) is hereby amended and restated to read as follows:




               (1) Remedies. Each Participating Investor and holder of the
Debentures shall have all rights and remedies set forth in the Transaction
Documents and all rights and remedies which such person has been granted at any
time under any other agreement or contract and all of the rights which such person
has under any law. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting a
bond or other security), to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
Furthermore, the Company recognizes that in the event that it fails to perform,
observe, or discharge any or all of its obligations under the Transaction
Documents, any remedy at law may prove to be inadequate relief to the Participating
Investors and holders of the Debentures. The Company therefore agrees that the
Participating Investors and holders of the Debentures shall be entitled to seek
temporary and permanent injunctive relief in any such case without the necessity of
proving actual damages and without posting a bond or other security.




               (vii) The following new section is hereby added following Section 8(n):




     (o) Definitions.




     “Exchange Agreements” means the Exchange Agreements dated as
of May 11, 2009, between the Company and the Participating
Investors.




     “Exchanged Debentures” means the secured convertible
debentures issued by the Company on the Closing Date (as defined
in the Exchange Agreements).




     “Majority Interest” means the Participating Investors and the
holders of the Debentures that beneficially own in the aggregate
at least a majority of the aggregate principal amount outstanding
under the Debentures and the Exchanged Debentures.




     “Participating Investor” means each Person that received
Exchanged Debentures on the Closing Date (as defined in the
Exchange Agreements), and their Permitted Assigns.



[Signature Page Follows]




48









 





          IN WITNESS WHEREOF, the Company and the Investor have caused their respective signature page
to this Exchange Agreement to be duly executed as of the date first written above.




	 	 	 	 	 
	 	COMPANY:


TRICO MARINE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




[Signature Page to Exchange Agreement]




 









 





          IN WITNESS WHEREOF, the Company and the Investor have caused their respective signature page
to this Exchange Agreement to be duly executed as of the date first written above.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Exchange Agreement]





 











 






Exhibit A




Schedule of Investors




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	Highbridge International LLC	 	c/o Highbridge Capital Management, LLC	 	75,700,000	 	N/A	 	60,560,000	 	3,785,000	 	Schulte Roth & Zabel LLP	 		 	908,400
	 	 	9 West 57th Street, 27th Floor	 	 	 	 	 	 	 	 	 	919 Third Avenue	 		 	 
	 
	 	New York, NY 10019
	 	 	 	 	 	 	 	 	 	New York, New York 10022
	 		 	 
	 
	 	Attention: Mark Vanacore
	 	 	 	 	 	 	 	 	 	Attn: Eleazer Klein, Esq.
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 593-5955
	 		 	 
	Highbridge International LLC	 	c/o Highbridge Capital Management, LLC	 	4,280,000	 	N/A	 	3,424,000	 	214,000	 	Schulte Roth & Zabel LLP	 		 	51,360
	 	 	9 West 57th Street, 27th Floor	 	 	 	 	 	 	 	 	 	919 Third Avenue	 		 	 
	 
	 	New York, NY 10019
	 	 	 	 	 	 	 	 	 	New York, New York 10022
	 		 	 
	 
	 	Attention: Mark Vanacore
	 	 	 	 	 	 	 	 	 	Attn: Eleazer Klein, Esq.
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 593-5955
	 		 	 
	Highbridge Convertible Arbitrage Master Fund L.P.
	 	c/o Highbridge Capital Management, LLC
	 	4,300,000
	 	N/A
	 	3,440,000
	 	215,000
	 	Schulte Roth & Zabel LLP
	 		 	51,600
	 	9 West 57th Street, 27th Floor
	 	 	 	 	 	 	 	 	 	919 Third Avenue
	 		 	 
	 
	 	New York, NY 10019
	 	 	 	 	 	 	 	 	 	New York, New York 10022
	 		 	 
	 
	 	Attention: Mark Vanacore
	 	 	 	 	 	 	 	 	 	Attn: Eleazer Klein, Esq.
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 593-5955
	 		 	 
	Capital Ventures International
	 	c/o Heights Capital Management Inc.
	 	39,500,000
	 	N/A
	 	31,600,000
	 	1,975,000
	 	101 California Street, Suite 3250
	 		 	474,000
	 
	 	101 California Street, Suite 3250
	 	 	 	 	 	 	 	 	 	San Francisco, CA 94111
	 		 	 
	 
	 	San Francisco, CA 94111
	 	 	 	 	 	 	 	 	 	Fax: (415) 403-6525
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Portside Growth and Opportunity Fund
	 	c/o Ramius LLC
	 	39,000,000
	 	N/A
	 	31,200,000
	 	1,950,000
	 	599 Lexington Avenue
	 		 	468,000
	 
	 	599 Lexington Avenue
	 	 	 	 	 	 	 	 	 	New York, NY 10022
	 		 	 
	 
	 	New York, NY 10022
	 	 	 	 	 	 	 	 	 	Attn: Greg Sandukas
	 		 	 
	 
	 	Attn: Jeff Smtih
	 	 	 	 	 	 	 	 	 	Fax: (212) 845-7986
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	Whitebox Combined Partners LP
	 	c/o Whitebox Advisors
	 	9,197,000
	 	N/A
	 	7,357,600
	 	459,850
	 	Mark Strefling
	 		 	110,364
	 
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 		 	 
	 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 		 	 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Cineasias Partners LP
	 	c/o Whitebox Advisors
	 	5,085,000
	 	61,020
	 	4,068,000
	 	254,250
	 	Mark Strefling
	 		 	N/A
	 
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 		 	 
	 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 		 	 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Whitebox Convertible Arbitrage Partners LP
	 	c/o Whitebox Advisors
	 	4,048,000
	 	N/A
	 	3,238,400
	 	202,400
	 	Mark Strefling
	 		 	48,576
	 
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 		 	 
	 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 		 	 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	F Cubed Partners LP
	 	c/o Whitebox Advisors
	 	7,363,000
	 	88,356
	 	5,890,400
	 	368,150
	 	Mark Strefling
	 		 	N/A
	 
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 		 	 
	 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 		 	 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	IAM Mini-Fund 14 Limited
	 	c/o Whitebox Advisors

3033 Excelsior Blvd. #300

Minneapolis, MN 55416

Fax: (612) 253-6100
	 	1,307,000
	 	N/A
	 	1,045,600
	 	65,350
	 	Mark Strefling3033
 Excelsior
Blvd. #300 
Minneapolis, MN 55416
Fax: (612) 253-6100
	 		 	15,684
	Whitebox Intermarket Partners LP
	 	c/o Whitebox Advisors
	 	5,750,000
	 	N/A
	 	4,600,000
	 	287,500
	 	Mark Strefling
	 		 	69,000
	 
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 		 	 
	 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 		 	 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Pandora Select Partners LP
	 	c/o Whitebox Advisors
	 	2,000,000
	 	N/A
	 	1,600,000
	 	100,000
	 	Mark Strefling
	 		 	24,000
	 
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 		 	 
	 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 		 	 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 			 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	Whitebox Special Opportunities Fund Series B Partners LP
	 	c/o Whitebox Advisors
	 	1,000,000
	 	12,000
	 	800,000
	 	50,000
	 	Mark Strefling
	 			N/A
	 	3033 Excelsior Blvd. #300
	 	 	 	 	 	 	 	 	 	3033 Excelsior Blvd. #300
	 			 
	 	Minneapolis, MN 55416
	 	 	 	 	 	 	 	 	 	Minneapolis, MN 55416
	 			 
	 
	 	Fax: (612) 253-6100
	 	 	 	 	 	 	 	 	 	Fax: (612) 253-6100
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	Radcliffe SPC, Ltd. for and on behalf of the Class A Segregated Portfolio
	 	c/o Radcliffe Capital Management, L.P.
	 	20,500,000
	 	N/A
	 	16,400,000
	 	1,025,000
	 	N/A
	 			246,000
	 	50 Monument Rd., Ste. 300
	 	 	 	 	 	 	 	 	 	 	 			 
	 	Bala Cynwyd, PA 19004
	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	Fax: 610-617-0580
	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	Attn: Chris Hinkel
	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	BHCO Master, Ltd.
	 	Grand Pavilion Commerial Centre
	 	403,000
	 	N/A
	 	322,400
	 	20,150
	 	Cadwalader, Wickersham & Taft LLP
	 			4,836
	 
	 	802 West Bay Road
	 	 	 	 	 	 	 	 	 	One World Financial Center
	 			 
	 
	 	George Town, Grand Cayman
	 	 	 	 	 	 	 	 	 	New York, NY 10281
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 504-6666
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	Bay Harbour Master, Ltd.
	 	Grand Pavilion Commerial Centre
	 	7,997,000
	 	N/A
	 	6,397,600
	 	399,850
	 	Cadwalader, Wickersham & Taft LLP
	 			95,964
	 
	 	802 West Bay Road
	 	 	 	 	 	 	 	 	 	One World Financial Center
	 			 
	 
	 	George Town, Grand Cayman
	 	 	 	 	 	 	 	 	 	New York, NY 10281
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 504-6666
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	dQuant Special Opportunities Fund
	 	712 Jefferson Street
	 	5,000,000
	 	60,000
	 	4,000,000
	 	250,000
	 	Cadwalader, Wickersham & Taft LLP
	 			N/A
	 
	 	Tell City, IN 47586
	 	 	 	 	 	 	 	 	 	One World Financial Center
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	New York, NY 10281
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 504-6666
	 			 
	Steven and Ann Van Dyke
	 	 
	 	2,000,000
	 	24,000
	 	1,600,000
	 	100,000
	 	Cadwalader, Wickersham & Taft LLP
	 			N/A
	 
	 	 
	 	 	 	 	 	 	 	 	 	One World Financial Center
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	New York, NY 10281
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (212) 504-6666
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	OCM Global Convertible Securities Fund — Domestic Convertible
	 	c/o Oaktree Capital Management L.P.
	 	100,000
	 	N/A
	 	80,000
	 	5,000
	 	333 South Grand Avenue, 28th Floor
	 	 	 	1,200
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 	 	 	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OCM U.S. Convertible Securities
	 	c/o Oaktree Capital Management L.P.
	 	80,000
	 	N/A
	 	64,000
	 	4,000
	 	333 South Grand Avenue, 28th Floor
	 	 	 	960
	 
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 	 	 	 
	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Arlington County Employee’s Retirement System
	 	c/o Oaktree Capital Management L.P.
	 	195,000
	 	2,340
	 	156,000
	 	9,750
	 	333 South Grand Avenue, 28th Floor
	 	 	 	N/A
	 
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 	 	 	 
	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	F.M. Kirby Foundation, inc.
	 	c/o Oaktree Capital Management L.P.
	 	195,000
	 	2,340
	 	156,000
	 	9,750
	 	333 South Grand Avenue, 28th Floor
	 	 	 	N/A
	 
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 	 	 	 
	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	OCM Convertible Trust
	 	c/o Oaktree Capital Management L.P.
	 	465,000
	 	5,580
	 	372,000
	 	23,250
	 	333 South Grand Avenue, 28th Floor
	 			N/A
	 
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 			 
	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	Virginia Retirement System
	 	c/o Oaktree Capital Management L.P.
	 	2,260,000
	 	27,120
	 	1,808,000
	 	113,000
	 	333 South Grand Avenue, 28th Floor
	 			N/A
	 
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 			 
	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	Qwest Pension Trust
	 	c/o Oaktree Capital Management L.P.
	 	485,000
	 	5,820
	 	388,000
	 	24,250
	 	333 South Grand Avenue, 28th Floor
	 			N/A
	 
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 			 
	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	Navistar, Inc. (Contributory Retirement Plan Trust)	 	c/o Oaktree Capital Management L.P.
	 	125,000
	 	1,500
	 	100,000
	 	6,250
	 	333 South Grand Avenue, 28th Floor
	 			N/A
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 			 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	Navistar, Inc. (Retirement Plan for Salaried Employees Trust)
	 	c/o Oaktree Capital Management L.P.
	 	70,000
	 	840
	 	56,000
	 	3,500
	 	333 South Grand Avenue, 28th Floor
	 			N/A
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 			 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 			 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	Navistar, Inc.
(Retiree Health Benefit Trust)
	 	c/o Oaktree Capital Management L.P.	 	75,000	 	900	 	60,000	 	3,750	 	333 South Grand Avenue, 28th Floor	 		 	N/A
	 	333 South Grand Avenue, 28th Floor	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071	 		 	 
	 	Los Angeles, CA 90071	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	National Railroad	 	c/o Oaktree Capital Management L.P.	 	680,000	 	8,160	 	544,000	 	34,000	 	333 South Grand Avenue, 28th Floor	 		 	N/A
	Retirement Investment Trust	 	333 South Grand Avenue, 28th Floor	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071	 		 	 
	 	Los Angeles, CA 90071	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Chrysler LLC Master Retirement Trust
	 	c/o Oaktree Capital Management L.P.
	 	545,000
	 	6,540
	 	436,000
	 	27,250
	 	333 South Grand Avenue, 28th Floor
	 		 	N/A
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071	 		 	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	ACE Tempest Reinsurance Ltd.	 	c/o Oaktree Capital Management L.P.
	 	295,000
	 	N/A
	 	236,000
	 	14,750
	 	333 South Grand Avenue, 28th Floor
	 		 	3,540
	 	333 South Grand Avenue, 28th Floor
	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 		 	 
	 	Los Angeles, CA 90071	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Trust for the Defined Benefit
Plan of ICI American Holdings Inc.	 	c/o Oaktree Capital Management L.P.	 	55,000	 	660	 	44,000	 	2,750	 	333 South Grand Avenue, 28th Floor	 		 	N/A
	 	333 South Grand Avenue, 28th Floor	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071	 		 	 
	 	Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290
	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	Vanguard Convertible Securities Fund Inc.
	 	c/o Oaktree Capital Management L.P.
	 	3,460,000
	 	41,520
	 	2,768,000
	 	173,000
	 	333 South Grand Avenue, 28th Floor
	 		 	N/A
	 	333 South Grand Avenue, 28th Floor	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90071
	 		 	 
	 	Los Angeles, CA 90071	 	 	 	 	 	 	 	 	 	Fax: (213) 830-6290	 		 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 






 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Principal	 	 	 	 	 	 	 	Aggregate
	 	 	 	 	Existing	 	Exchanged	 	Amount of	 	Cash	 	Legal Representative’s	 	 	 	Number of
	 	 	Address and Facsimile	 	Debenture	 	Common	 	Exchanged	 	Consideration	 	Address and Facsimile	 	Investor Broker Account	 	Exchanged
	Investor 	 	Number	 	Amount	 	Shares	 	Debenture	 	Amount	 	Number	 	Information	 	Warrants
	BNP Paribas
	 	BNP Paribas Arbitrage SNC
	 	5,000,000
	 	N/A
	 	4,000,000
	 	250,000
	 	787 Seventh Avenue
	 	 	 	60,000
	 
	 	8 rue de SOFIA
	 	 	 	 	 	 	 	 	 	8th Floor
	 	 	 	 
	 
	 	75018 Paris
	 	 	 	 	 	 	 	 	 	New York, NY 10019
	 	 	 	 
	 
	 	France
	 	 	 	 	 	 	 	 	 	Attn: Nick Gao
	 		 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: (610) 491-1889
	 	 	 	 
	Royal Bank of Canada
	 	3 World Financial Center
	 	4,000,000
	 	N/A
	 	3,200,000
	 	200,000
	 	RBC Capital Markets
	 	 	 	48,000
	 
	 	200 Vesey Street
	 	 	 	 	 	 	 	 	 	Peter Von Maur
	 	 	 	 
	 
	 	New York, NY 10281
	 	 	 	 	 	 	 	 	 	One Liberty Plaza —
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	165 Broadway - 5th Flr
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	New York, NY 10006
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	Fax: 212-858-7316
	 	 	 	 
	Kurt Cellar and Margaret Loizou Cellar
	 	 	 	500,000	 	6,000	 	400,000	 	25,000	 	N/A	 	 	 	N/A
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Long Ball Partners, LLC	 	2000 Avenue of the Stars	 	500,000	 	6,000	 	400,000	 	25,000	 	Todd Wiench	 	 	 	N/A
	 	 	9th Floor South	 	 	 	 	 	 	 	 	 	Sr VP & General Counsel	 	 	 	 
	 	 	Los Angeles, CA 90067	 	 	 	 	 	 	 	 	 	2000 Avenue of the Stars	 	 	 	 
	 	 	Fax: 310-777-3099	 	 	 	 	 	 	 	 	 	9th Floor South	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Los Angeles, CA 90067	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Fax: 310-777-3099	 	 	 	 







 








 








Exhibit B




Form of Warrant




 









 








Exhibit C




Indenture




 









 








Exhibit D




Pledge Agreement




 









 








Exhibit E




Guaranty




 









 








Exhibit F




Intercreditor Agreement




 









 








Exhibit G




Mortgage




 









 








Exhibit H




Assignment of Earnings




 









 








Exhibit I




Assignment of Insurances




 









 








Exhibit J




DTC Instructions




 









 








Exhibit K-1




V&E Opinion




 









 








Exhibit K-2




General Counsel Opinion




 









 








Exhibit K-3




Royston, Rayzor, Vickery & Williams Opinion




 









 








Exhibit K-4




Alick Lawrence Chambers  Opinion




 









 








Exhibit L




Assistant Secretary’s Certificate




 









 








Exhibit M




Officer’s Certificate




 









 








Schedule I




Description of Collateral





	1.	 	Each of the following Mortgaged Vessels solely owned by Trico Marine Assets, Inc.:






	 	•	 	United States flag vessel Trico Moon, Official Number 1215615;
	 
	 	•	 	United States flag vessel Trico Mystic, Official Number 1212011;
	 
	 	•	 	Commonwealth of Dominica flag vessel Elm River, Official Number 50206;
	 
	 	•	 	Commonwealth of Dominica flag vessel Kings River, Official Number 50259; and
	 
	 	•	 	Commonwealth of Dominica flag vessel Big Blue River, Official Number 50322.






	2.	 	Insurance Collateral (as defined in the Assignments of Insurances) for each of the Mortgaged
Vessels.
	 
	3.	 	Earnings Collateral (as defined in the Assignments of Earnings) for each of the Mortgaged
Vessels.
	 
	4.	 	The Trico Supply Intercompany Loan Documentation (as defined in the Pledge Agreement).
	 
	5.	 	The issued and outstanding equity interests in (i) Trico Marine Assets, Inc. and Trico Marine
Operators, Inc. and (ii) any other Domestic Subsidiary (as defined in the Pledge Agreement) at
any time owned, directly or indirectly, by the Issuer which owns, directly or indirectly,
interests in Trico Marine Assets, Inc. or Trico Marine Operators, Inc.




 









 











     Schedule II



144 Non-Affiliate Seller’s Representation Letter




 









 





Schedule III




Required Insurance




 









 








Schedule IV




Approved Classification Societies





 









 








Annex A




Qualified Institutional Buyer Status