EXHIBIT 4.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made and entered into this 9th day of August,
2002, by and among FLEET CAPITAL CORPORATION, a Rhode Island corporation (in its
individual capacity, "Fleet"), successor in interest by assignment to Shawmut
Capital Corporation ("Shawmut"), SOUTHWEST BANK OF TEXAS, N.A., a national
banking association ("Southwest"); WHITNEY NATIONAL BANK, a national banking
association ("Whitney"); (Fleet, Whitney and Southwest being referred to herein
collectively as the "Lenders"), Fleet as Agent for the Lenders (the "Agent");
AQUATICA, INC. ("Aquatica"), a Louisiana corporation; CANYON OFFSHORE, INC.
("Canyon"), a Texas corporation; CAL DIVE INTERNATIONAL, INC., a Minnesota
corporation ("Cal Dive") and ENERGY RESOURCE TECHNOLOGY, INC., a Delaware
corporation ("ERT") (Cal Dive, ERT, Aquatica and Canyon being referred to
individually and collectively as the "Borrower").
RECITALS
A. The Borrower, the Agent and the Lenders entered into that certain
Second Amended and Restated Loan and Security Agreement (as amended, modified
and supplemented from time to time, the "Loan Agreement"), dated as of February
22, 2002.
B. The Borrower, the Agent and the Lenders have agreed to amend the
Loan Agreement to, among other things, modify the defined terms and modify a
financial covenant based upon the terms and conditions set forth in this
Amendment.
NOW THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01 AMENDMENTS TO DEFINED TERMS.
(a) The definition of "Applicable Margin Amount" in Section
1.1 of the Loan Agreement, is hereby amended to read as follows:
"Applicable Margin Amount - at any time with respect
to all Eurodollar or Base Rate Loans, the basis points as set
forth in the table below.
APPLICABLE MARGIN
Cash Flow Leverage Ratio Eurodollar Base Rate
<1.75 125 -25.0
>or = to 1.75 < 2.00 150 0.0
>or = to 2.00 < 2.25 175 25.0
>or = to 2.25 < 2.50 200 50.0
>or = to 2.50 < 2.75 225 75.0
>or = to 2.75 < 3.00 250 100.0
>or = to 3.00 275 125.0"
(b) Section 1.1 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"Income From Operations - with respect to any fiscal period,
means the Consolidated EBITDA of the Borrower, less (a)
Unfunded Capital Expenditures, (b) accrued Taxes for such
period (excluding deferred taxes, which shall be deducted from
Income From Operations for the quarter in which they are due
and payable), and (c) any plug and abandonment obligations, as
permitted by Section 8.2(c) (viii) below, which are paid to
entities not related to Borrower and which are not offset by
payments from such unrelated entities for such services."
2.02 AMENDMENT TO FINANCIAL COVENANTS. Section 8.3(a) of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
"(a) Cash Flow Leverage Test. The Borrower will not
permit its Cash Flow Leverage Ratio to be greater than 3.25 to
1.00."
ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by the Agent:
(a) The Agent shall have received this Amendment, duly
executed by each Borrower;
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(b) The Agent shall have received a company general
certificate from each Borrower certified by the Secretary or Assistant
Secretary of each Borrower acknowledging (A) that such Borrower's Board
of Directors has adopted, approved, consented to and ratified
resolutions which authorize the execution, delivery and performance by
such Borrower of this Amendment and all other documents and agreements
contemplated herein, and (B) the names of the officers of such Borrower
authorized to sign this Amendment and all other documents and
agreements contemplated herein (including the certificates contemplated
herein) together with specimen signatures of such officers,
(c) The representations and warranties contained herein and in
the Loan Agreement and the other Loan Documents shall be true and
correct as of the date hereof, as if made on the date hereof,
(d) No Default or Event of Default shall have occurred and be
continuing, unless such Default or Event of Default has been
specifically waived in writing by the Agent; and
(e) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to the Agent and its legal counsel.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
4.01 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Loan Agreement and the other Loan Documents, and, except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Loan Agreement and the other Loan Documents are ratified and confirmed and
shall continue in full force and effect. The Borrower, the Agent and the Lenders
agree that the Loan Agreement and the other Loan Documents, as amended hereby,
shall continue to be legal, valid, binding and enforceable in accordance with
their respective terms.
4.02 REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents
and warrants to the Agent and the Lenders that (a) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed or
delivered in connection herewith have been authorized by all requisite corporate
action on the part of such Borrower and will not violate the Articles or
Certificate of Incorporation or Bylaws of such Borrower; (b) presently effective
resolutions of such Borrower's Board of Directors authorize the execution,
delivery and performance of this Amendment and any and all other Loan Documents
executed and/or delivered in connection herewith; (c) the representations and
warranties contained in the Loan Agreement, as amended hereby, and any other
Loan Document are true and correct on and as of the date hereof and on and as of
the date of execution hereof as though made on and as of each such date; (d) no
Default or Event of Default under the Loan Agreement, as amended hereby, has
occurred and is continuing, unless such Default or Event of Default has been
specifically waived in writing by the Agent on behalf of the Lenders; (e) each
Borrower is in full compliance with all
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covenants and agreements contained in the Loan Agreement and the other Loan
Documents, as amended hereby; and (f) each Borrower has not amended its Articles
or Certificate of Incorporation or its Bylaws since the date of the Loan
Agreement, except for such amendments, if any, which are attached as exhibits to
the certificates referred to in Section 3.01(b) above.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in the Loan Agreement or any other Loan Document, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents in accordance with Section 7.3 of the Loan Agreement, and no
investigation by the Agent or Lenders or any closing shall affect the
representations and warranties or the right of the Agent or the Lenders to rely
upon them.
5.02 REFERENCE TO LOAN DOCUMENTS. Each of the Loan Agreement and the
other Loan Documents, and any and all other agreements, documents or instruments
now or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Loan Documents, as amended hereby, are hereby amended so
that any reference in the Loan Agreement and such other Loan Documents to any
other Loan Document shall mean a reference to the Loan Documents as amended
hereby.
5.03 EXPENSES OF LENDER. As provided in the Loan Agreement, the
Borrower agrees to pay on demand all costs and expenses incurred by the Agent
and the Lenders in connection with the preparation, negotiation, and execution
of this Amendment and the other Loan Documents executed pursuant hereto and any
and all amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of the Agent's legal counsel, and all costs and
expenses incurred by the Agent and the Lenders in connection with the
enforcement or preservation of any rights under the Loan Agreement, as amended
hereby, or any other Loan Document, including, without limitation, the costs and
fees of the Agent's and the Lenders' legal counsel.
5.04 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
5.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of the Agent, the Lenders and the Borrower and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Agent.
5.06 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
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5.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by the
Agent or Lenders to or for any breach of or deviation from any covenant or
condition by the Borrower shall be deemed a consent to or waiver of any other
breach of the same or any other covenant, condition or duty.
5.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.09 APPLICABLE LAW. THIS AMENDMENT HERETO SHALL BE DEEMED TO HAVE BEEN
MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
5.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS,
EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HERE, OF ON THE DATE THIS AMENDMENT IS EXECUTED.
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWERS AND
LENDER.
5.11 RELEASE. EACH BORROWER HEREBY ACKNOWLEDGES THAT AS OF THE DATE
HEREOF IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND
OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL
OR ANY PART OF ITS LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE
RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER. THE BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES THE AGENT AND THE
LENDERS, THEIR PREDECESSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS
AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION,
DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY (EXCEPT FOR POSSIBLE CLAIMS, DEMANDS, ACTIONS,
CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE AGENT OR THE LENDERS, THEIR
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS), ORIGINATING IN WHOLE
OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH BORROWER
MAY NOW OR HEREAFTER HAVE AGAINST THE AGENT OR THE LENDERS, THEIR PREDECESSORS,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS), IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING,
WITHOUT
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LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE
OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, AND
NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been executed as of August 9,
2002.
CAL DIVE INTERNATIONAL, INC.
By: /s/ A. XXXX XXXXXXX
--------------------------------------
Name: A. Xxxx Xxxxxxx
Title: Senior Vice President & CFO
ENERGY RESOURCE TECHNOLOGY, INC.
By: /s/ A. XXXX XXXXXXX
--------------------------------------
Name: A. Xxxx Xxxxxxx
Title: Senior Vice President & Treasurer
AQUATICA, INC.
By: /s/ A. XXXX XXXXXXX
--------------------------------------
Name: A. Xxxx Xxxxxxx
Title: Vice President & Treasurer
CANYON OFFSHORE, INC.
By: /s/ A. XXXX XXXXXXX
--------------------------------------
Name: A. Xxxx Xxxxxxx
Title: Vice President & Treasurer
FLEET CAPITAL CORPORATION, as Agent for
the Lenders
By: /s/ E. XXXXX XXXXXXXXXX
--------------------------------------
Name: E. Xxxxx Xxxxxxxxxx
Title: Vice President
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FLEET CAPITAL CORPORATION
By: /s/ E. XXXXX XXXXXXXXXX
--------------------------------------
Name: E. Xxxxx Xxxxxxxxxx
Title: Vice President
SOUTHWEST BANK OF
TEXAS, N.A.
By: /s/ XXXX X. XXXX
--------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
WHITNEY NATIONAL BANK
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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