EXHIBIT 4.13
FIRST AMENDMENT
This First Amendment (this "First Amendment") dated as of January 7,
2003 is entered into by and among Cal Dive/Gunnison Business Trust No. 2001-1, a
Delaware business trust (the "Borrower"), Energy Resource Technology, Inc., a
Delaware corporation (the "Beneficiary"), Cal Dive International, Inc., a
Minnesota corporation (the "Parent Guarantor"), the Lenders party to the Amended
and Restated Credit Agreement referred to below, and Bank One, NA, a national
banking association having its principal office in Chicago, Illinois, as agent
for such Lenders. The parties hereto agree as follows:
WHEREAS, the Borrower, the Beneficiary, the Parent Guarantor,
Wilmington Trust Company, a Delaware banking corporation, the Lenders party
thereto, and Bank One, NA, a national banking association having its principal
office in Chicago, Illinois, as agent for such Lenders, entered into that
certain Amended and Restated Credit Agreement dated as of July 26, 2002 (the
"Agreement"); and
WHEREAS, the Borrower desires to issue preferred stock and in
connection therewith has requested certain amendments to the Agreement; and
WHEREAS, as a result, the parties hereto desire to amend the Agreement
in certain respects as more fully described herein;
NOW, THEREFORE, in consideration of the undertakings set forth herein
and other good and valuable consideration, the parties hereto hereby agree as
follows:
SECTION 1. DEFINED TERMS. Capitalized terms used and not otherwise
defined in this First Amendment shall have the meanings attributed to them in
Article I of the Agreement.
SECTION 2. AMENDMENT OF AGREEMENT. Upon the satisfaction of the
conditions precedent set forth in Section 4 of this First Amendment but
effective as of the date hereof, the Agreement shall be amended as follows:
(i) Article I of the Agreement is hereby amended by adding
thereto between the definitions of "Appraiser" and "Approved Budget"
the following new definition of "Xxxxxxxx Preferred Stock":
"'Approved Preferred Stock' means cumulative,
convertible preferred stock of the Parent Guarantor having an
aggregate liquidation preference of no more than $55,000,000."
(ii) The definition of "Fixed Charge Coverage Ratio" set forth
in Article I of the Agreement is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following new definition
of "Fixed Charge Coverage Ratio":
"'Fixed Charge Coverage Ratio' means, with reference
to the periods referred to below, on a consolidated basis for
the Parent Guarantor and its Consolidated Subsidiaries, the
ratio of Income from Operations to Interest Expense plus
scheduled payments of principal plus the aggregate amount of
cash dividends declared or paid on any preferred stock of the
Parent Guarantor, for the three-month period ending March 31,
2002, the six-month period ending June 30, 2002, the
nine-month period ending September 30, 2002, and thereafter on
a rolling four-quarter basis, calculated as of the last day of
each such period; provided, however, that for the three-month
period being March 31, 2002 up to $3,000,000 of capitalized
interest for the MARAD Debt shall not be included in
calculating Interest Expense. For purposes of this definition,
the interest expense on the liabilities described in Section
1(l) of Schedule 6 shall be excluded."
(iii) The definition of "Interest Coverage Ratio" set forth in
Article I of the Agreement is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following new definition
of "Interest Coverage Ratio":
"'Interest Coverage Ratio' means, on any day, the
ratio of (a) EBIT to (b) Interest Expense plus the aggregate
amount of cash dividends declared or paid on any preferred
stock of the Parent Guarantor for the period of four
consecutive fiscal quarters of the Parent Guarantor ending on
the last day of the most recent fiscal quarter of the Parent
Guarantor. For purposes of this definition, the interest
expense on the liabilities described in Section 1(l) of
Schedule 6 shall be excluded."
(iv) Section 6.10 is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following new Section
6.10:
"6.10. Dividends and Redemptions. The Parent
Guarantor will not, nor will it permit any of its Subsidiaries
to, declare or pay any dividends or make any distributions on
its capital stock or redeem, repurchase or otherwise acquire
or retire any of its capital stock at any time outstanding,
except the following:
(a) any Subsidiary of the Parent Guarantor
may declare and pay dividends or make distributions
to the Parent Guarantor or to a Wholly-Owned
Subsidiary of the Parent Guarantor;
(b) the Parent Guarantor may declare and pay
dividends on the Approved Preferred Stock by issuing
shares of its common stock;
(c) the Parent Guarantor may redeem,
repurchase, acquire or retire shares of the Approved
Preferred Stock in exchange for shares of its common
stock; and
(d) the Parent Guarantor may declare and pay
cash dividends on the Approved Preferred Stock
provided that (i) both the declaration and
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payment of any such dividend occur within the same
fiscal quarter of the Parent Guarantor, (ii) no
Default or Unmatured Default shall exist before or
after giving effect to any such declaration for
payment or be created as a result thereof, and (iii)
the aggregate amount of cash dividends declared on
the Approved Preferred Stock during any fiscal
quarter of the Parent Guarantor does not exceed the
maximum amount of cash dividends which could have
been declared paid on the Approved Preferred Stock
during the immediately preceding fiscal quarter of
the Parent Guarantor (calculated without taking into
account any of the cash dividends actually paid on
the Approved Preferred Stock during such fiscal
quarter) without violating either Section 11 or
Section 12 of Schedule 6."
(v) Section 6 of Schedule 6 is hereby amended by deleting it
in its entirety and substituting in lieu thereof the following new
Section 6:
"Section 6. INTENTIONALLY DELETED."
(vi) Section 8 of Schedule 6 is hereby amended by deleting it
in its entirety and substituting in lieu thereof the following new
Section 8:
"Section 8. Agreements Restricting Liens and
Distributions. The Parent Guarantor will not, nor will it
permit any of its Subsidiaries to, enter into any agreement
which (a) except with respect to specific Cal Dive Property
encumbered to secure payment of Indebtedness related to such
Cal Dive Property which encumbrance and Indebtedness are
permitted under Section 1 and Section 2, respectively, of this
Schedule IV, imposes restrictions greater than those under the
Loan Documents upon the creation or assumption of any Lien
upon such Cal Dive Property, revenues or assets, whether now
owned or hereafter acquired, (b) limits the declaration or
payment of dividends or any other distribution on any of the
capital stock of, or any redemption, repurchase or other
acquisition or retirement of any of the capital stock of, any
of the Parent Guarantor's Subsidiaries, or (c) limits any loan
or advance by any of the Parent Guarantor's Subsidiaries to
the Parent Guarantor."
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders to execute and deliver this First Amendment, each of the Borrower, the
Beneficiary, the Parent Guarantor, the Trustee and Wilmington Trust Company
hereby confirms, reaffirms and restates as of the date hereof its respective
representations and warranties set forth in Article V and/or Sections 5A.1 and
5A.3 of the Agreement provided that such representations and warranties shall be
and hereby are amended as follows: each reference therein to "this Agreement"
(including, without limitation, each such a reference included in the term "Loan
Documents" and all indirect references such as "hereby", "herein", "hereof" and
"hereunder") shall be deemed to be a collective reference to the Agreement, this
First Amendment and the Agreement as amended by this First Amendment. A Default
under and as defined in the Agreement as amended by this First Amendment shall
be deemed to have occurred if any representation or warranty made
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pursuant to the foregoing sentence of this Section 3 shall be materially false
as of the date on which made.
SECTION 4. CONDITIONS PRECEDENT. This First Amendment and the waivers
and amendments provided for herein shall become effective as of the date hereof
on the date on which the Agent shall have (i) executed a counterpart of this
First Amendment, and (ii) received one or more counterparts of this First
Amendment executed by the Borrower, the Beneficiary, the Parent Guarantor,
Wilmington Trust Company and the Required Lenders.
SECTION 5. EFFECT ON THE AGREEMENT. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
Agreement and the other Loan Documents (i) shall remain unaltered, (ii) shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms, and (iii) are hereby ratified and confirmed in all
respects. Upon the effectiveness of this First Amendment, all references in the
Agreement (including references in the Agreement as amended by this First
Amendment) to "this Agreement" (including, without limitation, each such a
reference included in the term "Loan Documents" and all indirect references such
as "hereby", "herein", "hereof" and "hereunder") shall be deemed to be a
collective reference to the Agreement as amended by this First Amendment.
SECTION 6. CONFIRMATION GUARANTIES. Without limiting the provisions of
Section 5 of this First Amendment, (i) the Parent Guarantor hereby (a) confirms
and agrees that none of the terms of this First Amendment or any other agreement
or document executed in connection herewith or contemplated herein shall
release, discharge, or otherwise limit or affect in any manner any of its
obligations under the Parent Guaranty, (b) confirms and agrees that the term
"Credit Agreement" as used and defined in the Parent Guaranty shall mean and
include the Agreement as amended by this First Amendment, and (c) ratifies and
confirms the Parent Guaranty and all of its obligations thereunder, and (ii) the
Beneficiary hereby (a) confirms and agrees that none of the terms of this First
Amendment or any other agreement or document executed in connection herewith or
contemplated herein shall release, discharge, or otherwise limit or affect in
any manner any of its obligations under the Beneficiary Guaranty, (b) confirms
and agrees that the term "Credit Agreement" as used and defined in the
Beneficiary Guaranty shall mean and include the Agreement as amended by this
First Amendment, and (c) ratifies and confirms the Beneficiary Guaranty and all
of its obligations thereunder.
SECTION 7. EXPENSES. The Borrower shall reimburse the Agent for any and
all reasonable costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent) paid or incurred by the Agent in connection with the
preparation, review, execution and delivery of this First Amendment.
SECTION 8. ENTIRE AGREEMENT. This First Amendment, the Agreement as
amended by this First Amendment and the other Loan Documents embody the entire
agreement and understanding between the parties hereto and supersede any and all
prior agreements and understandings between the parties hereto relating to the
subject matter hereof.
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SECTION 9. HEADINGS. The headings, captions, and arrangements used in
this First Amendment are for convenience only and shall not affect the
interpretation of this First Amendment.
SECTION 10. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
SECTION 11. INSTRUCTIONS TO TRUSTEE. By signing this First Amendment,
the Beneficiary hereby (i) acting pursuant to Section 6.6 of the Trust
Agreement, authorizes and directs the Trustee to execute and deliver this First
Amendment, and (ii) confirms that all action taken by the Trustee in connection
with this authorization and direction is covered by the indemnification, fee and
expense reimbursement provisions set forth in Sections 5.2 and 5.3 of the Trust
Agreement.
SECTION 12. LIMITATION OF LIABILITY OF OWNER TRUSTEE. It is expressly
understood and agreed by and among the parties hereto that, except as otherwise
expressly provided in Section 3 hereof or therein, this First Amendment is
executed by Wilmington Trust Company, not individually or personally but solely
as Trustee under the Trust Agreement in the exercise of the power and authority
conferred and vested in it as such Trustee, that each and all of the
representations, undertakings and agreements herein or therein made on the part
of the Trustee or the Borrower are intended not as personal representations,
undertakings and agreements by Wilmington Trust Company, or for the purpose or
with the intention of binding Wilmington Trust Company, personally, but are made
and intended for the purpose of binding only the Trust Estate, that nothing
herein contained shall be construed as creating any liability of Wilmington
Trust Company, or any incorporator or any past, present or future subscriber to
the capital stock of, or stockholder, officer or director of Wilmington Trust
Company, to perform any covenant either express or implied contained herein or
in the other Loan Documents to which the Trustee or the Borrower is a party, and
that so far as Wilmington Trust Company is concerned, any Person shall look
solely to the Trust Estate for the performance of any obligation hereunder or
thereunder or under any of the instruments referred to herein or therein;
provided, however, that nothing contained in this Section shall be construed to
limit in scope or substance the general corporate liability of Wilmington Trust
Company, expressly provided (i) to the Certificate Holders under the Trust
Agreement, (ii) in respect of those representations, warranties, agreements and
covenants of Wilmington Trust Company expressly set forth in Section 3 hereof,
or (iii) pursuant to the Trust Agreement, for the gross negligence or willful
misconduct of Wilmington Trust Company or to exercise the same degree of care
and skill as is customarily exercised by similar institutions in the receipt and
disbursement of moneys actually received by it in accordance with terms of the
Loan Documents under similar circumstances.
SECTION 13. COUNTERPARTS. This First Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this First Amendment by
signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the date first above written.
CAL DIVE/GUNNISON BUSINESS TRUST
No. 2001-1
By: Wilmington Trust Company, not in its
individual capacity, but solely as
trustee of Cal Dive/Gunnison
Business Trust No. 2001-1
By:
---------------------------------
Title:
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WILMINGTON TRUST COMPANY,
in its individual capacity to the extent
expressly provided herein
By:
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Title:
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ENERGY RESOURCE TECHNOLOGY, INC.
By:
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Title:
-----------------------------------
CAL DIVE INTERNATIONAL, INC.
By:
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Title:
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BANK ONE, NA,
Individually and as Agent
By:
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Title:
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