EXHIBIT 4.2
FIFTH AMENDMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "AMENDMENT") is made and entered into this __ day of April, 1997, by and
among CAL DIVE INTERNATIONAL, INC., a Minnesota corporation ("CAL DIVE"), ENERGY
RESOURCE TECHNOLOGY, INC., a Delaware corporation ("ERT") (Cal Dive and ERT are
collectively referred to as the "BORROWERS"), and FLEET CAPITAL CORPORATION, a
Rhode Island corporation ("LENDER"), successor-in-interest by merger to Fleet
Capital Corporation, a Connecticut corporation, formerly known as Shawmut
Capital Corporation ("SHAWMUT").
RECITALS
A. Borrowers and Shawmut entered into that certain Amended and Restated
Loan and Security Agreement (as amended, modified and supplemented from time to
time, the "LOAN AGREEMENT"), dated as of May 23, 1995, as amended by the
following:
(i) that certain First Amendment to Amended and Restated Loan and
Security Agreement, dated as of September 29, 1995;
(ii) that certain Second Amendment to Loan Documents, dated as of
March 8, 1996;
(iii) that certain Third Amendment to Loan Agreement, dated October
2, 1996, but effective as of August 12, 1996; and
(iv) that certain Third Amendment to Amended and Restated Loan and
Security Agreement, dated January 7, 1997, but effective as of November
22, 1996, which amendment was in fact the fourth amendment to the Amended
and Restated Loan Agreement.
B. Borrowers have requested Lender to amend the Loan Agreement to, among
other things:
(i) increase the maximum amount of the revolving credit facility
from $30,000,000 to $40,000,000,
(ii) increase the maximum amount of the sub-limit under the
equipment term loan facility to $30,000,000,
FIFTH AMENDMENT -Page 1
April 29, 1997
(iii) extend the term of the revolving credit and equipment term
loan facilities from May 22, 2000 to December 31, 2000,
(iv) modify the interest rate provisions by reducing the rate
applicable to Base Rate Loans from the Base Rate plus 0.5% to the Base
Rate and by reducing the rate applicable to Eurodollar Loans according to
the specific provisions set forth in this Amendment, and
(v) modify the financial covenants by revising the covenant
pertaining to the Fixed Charge Coverage Ratio, deleting the covenants
pertaining to the Current Ratio and minimum Income, and replacing the
covenant pertaining to the Leverage Ratio with a covenant pertaining to
maximum Indebtedness.
C. Borrowers have requested that Lender consent to, and waive any Default
(as defined in the Loan Agreement) or Event of Default (as defined in the Loan
Agreement) which may occur as a result of, the following transactions:
(i) The sale by Cal Dive, First Reserve (as defined in the Loan
Agreement) and the Management Group (as defined in the Loan Agreement) to
Coflexip, a French corporation or an affiliated company ("COFLEXIP"), and
Coflexip is to purchase from Cal Dive, First Reserve and the Management
Group, thirty-two percent (32%), in the aggregate, of the common stock of
Cal Dive (the "STOCK SALE"); and
(ii) The entry by Cal Dive into a joint venture (the "JOINT
VENTURE") with Coflexip, pursuant to which Cal Dive shall (a) own at least
fifty-one percent (51%) of the joint venture interest in the Joint
Venture, and (b) not contribute any Property to the Joint Venture, except
as approved in writing in advance by Lender.
Borrowers and Lender acknowledge that the Business Cooperation Agreement dated
April 11, 1997 between Cal Dive and Coflexip requires that the venturers of the
Joint Venture contribute capital and/or property to the Joint Venture free and
clear of all liens other than, in the case of Cal Dive, liens in favor of Lender
in connection with the Loan Agreement. Notwithstanding the requirement of the
Business Cooperation Agreement, Cal Dive agrees that it will not contribute
Property to the Joint Venture except as approved in writing in advance by
Lender.
D. Lender has agreed to release various properties of ERT that are subject
to existing negative pledge agreements, subject to, among other things, the
condition that upon the occurrence of a Default or Event of Default under the
Loan Agreement and the request of Lender, ERT shall promptly execute new
negative pledge agreements.
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:
FIFTH AMENDMENT -Page 2
April 29, 1997
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 DELETION OF CERTAIN DEFINITIONS. The definitions of "Current
Liabilities" and "Adjusted Tangible Net Worth" set forth in SECTION 1.1 of the
Loan Agreement are hereby deleted in their entirety.
2.02 ADDITION OF CERTAIN DEFINITIONS. SECTION 1.1 of the Loan Agreement is
hereby amended by adding thereto in alphabetical order the following
definitions:
"AVERAGE MONTHLY LOAN BALANCE - an amount equal to the quotient of
(i) the sum of the unpaid balance of all Loans owing by Borrower to Lender
at the end of each day for each calendar day during the month in question,
DIVIDED BY (ii) the number of days in such month."
"COFLEXIP ACCOUNT - An Account as to which the Account Debtor is
Coflexip, a French corporation, or an affiliated company; PROVIDED,
HOWEVER, that no such Account of Borrower shall be a Coflexip Account if
such Account is described in any of the lettered clauses of the definition
of an 'Eligible Account' contained in this Agreement (other than CLAUSES
(B), (E), (K), and (M) of such definition)."
"EBITDA - at any date of determination thereof, means Income From
Operations for the previous twelve (12) month period, PLUS depreciation,
amortization and other non-cash changes deducted in calculating Income
From Operations, and MINUS the Expected Maintenance Expenditures."
"EBITDA MULTIPLE - as calculated on the last day of each quarter, an
amount equal to the quotient of (i) the Total Commitment, DIVIDED BY (ii)
EBITDA."
"EXISTING APPLICABLE ANNUAL RATE - shall mean the 'Applicable Annual
Rate' as such term is defined by that certain Amended and Restated Loan
and Security Agreement, dated as of May 23, 1995, by and between Borrower
and Lender, as amended by (i) that certain First Amendment to Amended and
Restated Loan and Security Agreement, dated as of September 29, 1995, by
and between Borrower and Lender, (ii) that certain Second Amendment to
Loan Documents, dated as of March 8, 1996, by and between Borrower and
Lender, (iii) that certain Third Amendment to Loan Agreement, dated
October 2, 1996, but effective as of August 12, 1996, by and between
Borrower and Lender, and (iv) that certain Third Amendment to Amended and
Restated Loan and
FIFTH AMENDMENT -Page 3
April 29, 1997
Security Agreement, dated January 7, 1997, but effective as of November
22, 1996, by and between Borrower and Lender."
"EXPECTED MAINTENANCE EXPENDITURES - shall mean (i) Two Million and
No/100 Dollars ($2,000,000) or (ii) such other higher amount as reasonably
determined by Lender based on (a) the Annual Maintenance Capital
Expenditure Report (excluding any extraordinary capital expenditures
[i.e., those over One Hundred Thousand and No/100 Dollars ($100,000) for
which the Shareholder Agreement requires preparation of an appropriation
for capital expenditures] submitted for board approval which are described
in the Annual Maintenance Capital Expenditure Report), and (b) changes
that may occur to Borrower's marine vessels (e.g., changes in numbers,
changes in configuration, etc.), applicable maritime rules and
regulations, or any other factor affecting the maritime industry or
Borrower's business."
"FIFTH AMENDMENT - the Fifth Amendment to Amended and Restated Loan
and Security Agreement, dated April __, 1997, by and between Borrower and
Lender."
"INITIAL PUBLIC OFFERING - shall mean an underwritten public
offering of Borrower's capital stock pursuant to a registration statement
filed under the Securities Act of 1933, as amended."
"MAINTENANCE CAPITAL EXPENDITURES - means expenditures made and
liabilities incurred for the maintenance (including, without limitation,
dry docking and machinery overhauls), but not the acquisition, of any
marine vessel owned or leased by Borrower, together with the related
Equipment and including Offshore Platforms."
"TOTAL COMMITMENT - shall mean Forty Million and No/100 Dollars
($40,000,000)."
2.03 AMENDMENT TO BORROWING BASE. The definition of "Borrowing Base" set
forth in SECTION 1.1 of the Loan Agreement is hereby amended and restated to
read as follows:
"BORROWING BASE - as at any date of determination thereof, an amount
equal to the lesser of:
(a) the Revolving Credit Commitment then in effect; or
(b) an amount equal to:
(i) (A) eighty-five percent (85%) (or after an Event of
Default, such lesser percentage as Lender may in its discretion
determine from time to time after providing Borrower with written
notice of such reduction, which discretion shall be exercised in
good faith) of the net amount of Eligible Accounts outstanding at
such date, PLUS (B) the lesser of Three Million Dollars ($3,000,000)
or 85% (or after an Event of Default, such lesser percentage as
Lender may in its discretion determine from time to time after
providing
FIFTH AMENDMENT -Page 4
April 29, 1997
Borrower with written notice of such reduction, which discretion
shall be exercised in good faith) of the net amount of Coflexip
Accounts outstanding at such date;
PLUS
(ii) the lesser of (A) Four Million Dollars ($4,000,000)
or (B) eighty-five percent (85%) (or after an Event of Default, such
lesser percentage as Lender may in its discretion determine from
time to time after providing Borrower with written notice of such
reduction, which discretion shall be exercised in good faith) of the
amount of Unbilled Accounts outstanding at such date;
MINUS
(iii) an amount equal to the sum of (A) the face amount
of all Credit Enhancements outstanding at such date, (B) any amounts
which Lender may pay pursuant to any of the Loan Documents for the
account of Borrower, and (C) the Contingency Reserve, if any.
For purposes hereof, the net amount of Eligible Accounts at any time shall
be the face amount of such Eligible Accounts less (1) any and all returns,
rebates, discounts, (which may, at Lender's option, be calculated on
shortest terms), credits, allowances or sales, excise or other taxes of
any nature at any time granted, issued, owing, or claimed by Account
Debtors, outstanding or payable in connection with such Accounts at such
time, and (2) any interest, late fees, and services charges that may have
accrued on such Accounts by reason of the Account Debtors not having paid
the Accounts as they became due."
2.04 AMENDMENT TO CONTINGENCY RESERVE. The definition of "Contingency
Reserve" set forth in SECTION 1.1 of the Loan Agreement is hereby amended and
restated to read as follows:
"CONTINGENCY RESERVE - the reserve established by Lender in
accordance with the terms set forth on EXHIBIT C attached hereto. The
Contingency Reserve shall be in addition to and not in lieu of any other
reserve Lender may establish."
2.05 AMENDMENT TO ELIGIBLE ACCOUNTS. SUBSECTIONS (F), through (H) of the
definition of "Eligible Accounts" set forth in SECTION 1.1 of the Loan Agreement
are hereby amended and restated to read as follows:
"(f) it is due or unpaid from an Account Debtor (other than Ivory
Production Co. (if such Account is guaranteed by Blue Dolphin Energy
Borrower), X. Xxx XxXxxxxxx, Xxxxxx Oil & Gas Corp. or Zilkha Energy
Company) for more than ninety (90) days after the original invoice date;
or
FIFTH AMENDMENT -Page 5
April 29, 1997
(g) it is due or unpaid from X. Xxx XxXxxxxxx, Xxxxxx Oil & Gas
Corp. or Zilkha Energy Company for more than one hundred-twenty (120) days
after the original invoice date; or
(h) [Intentionally Omitted]."
2.06 AMENDMENT TO EQUIPMENT COMMITMENT. The definition of "Equipment
Commitment" set forth in SECTION 1.1 of the Loan Agreement is hereby amended and
restated to read in its entirety as followings:
"EQUIPMENT COMMITMENT - as at any date of determination thereof, an
amount equal to (a) Thirty Million Dollars ($30,000,000), MINUS (b) the
aggregate amount of all monthly reductions that have been scheduled to
occur from the date of the Fifth Amendment through the date of
determination of the Equipment Commitment, each in an amount of Three
Hundred Twelve Thousand Five Hundred Dollars ($312,500), and each to occur
on the first day of each calendar month during the term hereof, commencing
on May 1, 1998 and continuing for each month thereafter."
2.07 AMENDMENT TO EURODOLLAR LOAN. The definition of "EURODOLLAR LOAN" set
forth in SECTION 1.1 of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"EURODOLLAR LOAN - a Loan which bears interest at a rate that is
determined by reference to the Eurodollar Base Rate."
2.08 AMENDMENT TO REVOLVING CREDIT COMMITMENT. The definition of
"Revolving Credit Commitment" set forth in SECTION 1.1 of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"REVOLVING CREDIT COMMITMENT - as at any date of determination
thereof, an amount equal to (a) Forty Million Dollars ($40,000,000), MINUS
(b) the aggregate principal amount of Equipment Loans outstanding at such
date, MINUS (c) the face amount of all Credit Enhancements outstanding at
such date."
2.09 AMENDMENT TO TOTAL CREDIT FACILITY. The preamble of SECTION 2 of the
Loan Agreement is hereby amended and restated to read as follows:
"Subject to the terms and conditions of, and in reliance upon the
representations and warranties made in, this Agreement and the other Loan
Documents, Lender agrees to make a total credit facility of up to Forty
Million Dollars ($40,000,000.00) available upon Borrower's request
therefor, as follows:"
2.10 AMENDMENT TO APPLICABLE ANNUAL RATE. SECTION 3.1(A) of the Loan
Agreement is hereby amended and restated to read as follows:
FIFTH AMENDMENT -Page 6
April 29, 1997
"(A) INTEREST. Outstanding principal on the Loans shall bear
interest at the option of Borrower (subject to the terms and conditions
herein) at a rate based on either the Base Rate or Eurodollar Base Rate,
calculated daily, at the following rates per annum (individually called,
as applicable, an "APPLICABLE ANNUAL RATE").
(i) EXISTING EURODOLLAR LOANS. Each Eurodollar Loan
outstanding on the date of the Fifth Amendment shall continue to
bear interest at the Existing Applicable Annual Rate.
(ii) NEW EURODOLLAR LOANS. Subject to the limitations set
forth in clauses (A) and (B) of this SECTION 3.1(A)(II), each
Eurodollar Loan requested by Borrower pursuant to a Borrowing Notice
delivered to Lender after the date of the Fifth Amendment shall bear
interest, during the Eurodollar Interest Period selected by Borrower
for such Eurodollar Loan, at the Eurodollar Base Rate plus the
percentage indicated below that corresponds to the respective EBITDA
Multiple indicated below, as reported to Lender in the Compliance
Certificate most recently required to be delivered to Lender in
accordance with SECTION 8.1.J of this Agreement:
EBITDA MULTIPLE PERCENTAGE
less than 2.00 1.25%
equal to or greater than 2.00, and 1.50%
equal to or less than 2.25
equal to or greater than 2.26, and 1.75%
equal to or less than 2.75
equal to or greater than 2.76, and 2.25%
equal to or less than 3.00
greater than 3.00 2.50%
(a) Notwithstanding the foregoing, during the period
beginning the date of the Fifth Amendment and ending December
31, 1997, no Eurodollar Loan shall bear interest at a rate per
annum in excess of one and three-quarters percent (1.75%)
above the Eurodollar Base Rate for the Eurodollar Interest
Period applicable thereto.
(b) Notwithstanding the foregoing, if the Average
Monthly Loan Balance for any month is less than $15,000,000,
then no Eurodollar Loan requested by Borrower pursuant to a
Borrowing Notice delivered to Lender during the next
immediately following calendar month (and only during such
calendar month) shall bear interest during such next
FIFTH AMENDMENT -Page 7
April 29, 1997
immediately following calendar month at a rate per annum in
excess of one and one-half percent (1.50%) above the
Eurodollar Base Rate for the Eurodollar Interest Period
applicable thereto.
(iii) BASE RATE LOANS. The Base Rate Loans shall bear interest
at a fluctuating rate per annum equal to the Base Rate.
The interest rate applicable to Base Rate Loans shall be increased
or decreased, as the case may be, by an amount equal to any increase
or decrease in the Base Rate, with such adjustments to be effective
as of the opening of business on the day that any such change in the
Base Rate becomes effective. The Base Rate in effect on the date
hereof shall be the Base Rate effective as of the opening of
business on the date hereof, but if this Agreement is executed on a
day that is not a Business Day, the Base Rate in effect on the date
hereof shall be the Base Rate effective as of the opening of
business on the last Business Day immediately preceding the date
hereof. Interest on the Loans shall be calculated daily, based on
the actual days elapsed over a three hundred sixty (360) day year.
Further, for the purpose of computing interest, all items of payment
received by Lender shall be applied by Lender (subject to final
payment of all drafts and other items received in form other than
immediately available funds) against the Obligations on the day of
receipt. The determination of when a payment is received by Lender
will be made in accordance with SECTION 3.6."
2.11 AMENDMENT TO DEFAULT RATE. SECTION 3.1(B) of the Loan Agreement,
which governs the Default Rate, is hereby amended by deleting the reference to
"two percent (2.00%)" therein and substituting "one percent (1.00%)" in lieu
therefor.
2.12 AMENDMENT TO UNUSED COMMITMENT FEE. SECTION 3.1(F) of the Loan
Agreement, which sets forth the unused commitment fee, is hereby amended and
restated in its entirety to read as follows:
"(F) UNUSED COMMITMENT FEE. Borrower shall pay to Lender a monthly
fee equal to three-eighths of one percent (0.375%) per annum of the amount
by which the Total Commitment exceeds the Average Monthly Loan Balance.
The unused commitment fee shall be payable monthly in arrears on the first
day of each calendar month, commencing on May 1, 1997 and continuing for
each month thereafter."
2.13 AMENDMENT TO LETTER OF CREDIT FEES. SECTION 3.1(H) of the Loan
Agreement, which sets forth the fees for Letters of Credit and LC Guaranties, is
hereby amended by deleting the reference to "two percent (2.00%)" therein and
substituting "one and one-quarter of one percent (1.25%)" in lieu therefor.
2.14 AMENDMENT TO ORIGINAL AND RENEWAL TERMS. SECTION 3.3 of the Loan
Agreement, which specifies the Original and Renewal Terms of the Agreement, is
hereby amended by (i) deleting the reference to "May 22, 2000" therein and
substituting "December 31,
FIFTH AMENDMENT -Page 8
April 29, 1997
2000" in lieu therefor, and (ii) deleting the reference to "May 22, 2001"
therein and substituting "December 31, 2001" in lieu therefor.
2.15 AMENDMENT TO EARLY TERMINATION FEE. SECTION 3.4 of the Loan Agreement
is hereby amended and restated to read in its entirety as follows:
"3.4. EARLY TERMINATION BY BORROWER. Borrower may prepay the Loans
at any time during the term of this Agreement, in whole or in part,
without premium, penalty or liquidated damages. However, if Borrower
chooses to terminate the Revolving Credit Commitment, the Equipment
Commitment and this Agreement (all of which Borrower must terminate
simultaneously) in their entirety, Borrower shall give Lender at least
three (3) months prior written notice thereof, and, on the designated
termination date, all of the Obligations shall become due and payable, in
immediately available funds, and all Credit Enhancements issued by Lender
or Bank shall have expired or otherwise been terminated; PROVIDED,
HOWEVER, that, notwithstanding the foregoing, if Borrower terminates the
Revolving Credit Commitment, the Equipment Commitment and this Agreement
(all of which Borrower must terminate simultaneously) in their entirety
without giving Lender at least three (3) months prior written notice
thereof, Borrower shall pay Lender (in addition to the then outstanding
principal, accrued interest and other charges owing under the terms of
this Agreement and any of the other Loan Documents), as liquidated damages
for the loss of the bargain and not as a penalty, an amount equal to
one-half of one percent (.50%) of the Average Monthly Loan Balance."
2.16 AMENDMENT TO COVENANT REGARDING LIEN ON OIL AND GAS PROPERTIES. The
fourth sentence of SECTION 4.3 of the Loan Agreement, which pertains to liens on
oil and gas Properties, is hereby deleted in its entirety and replaced with the
following:
"Borrower further agrees that upon the request of Lender and after the
occurrence of an Event of Default, Borrower shall promptly execute and
deliver to Lender a Negative Pledge Agreement covering Borrower's interest
in the Offshore Platforms and other oil and gas Properties."
2.17 AMENDMENT TO COVENANT REGARDING DISPOSITIONS OF EQUIPMENT. SECTION
6.4 of the Loan Agreement is hereby deleted in its entirety and replaced with
the following:
"6.4. DISPOSITIONS. Borrower will not sell, lease or otherwise
dispose of or transfer any of the Equipment, any Offshore Platform or any
oil and gas Properties, or any part thereof without the prior written
consent of Lender; PROVIDED, HOWEVER, that the foregoing restriction shall
not apply to dispositions required by the United States government, or,
for so long as no Event of Default exists, to the following:
(A) dispositions of Offshore Platforms, oil and gas Properties
and related Equipment by ERT in the ordinary course of business;
PROVIDED, THAT, all proceeds thereof are delivered to Lender for
application to the Obligations in accordance with the terms of this
Agreement; or
FIFTH AMENDMENT -Page 9
Xxxxx 00, 0000
(X) replacement of Equipment that is substantially worn,
damaged or obsolete with Equipment of like kind, function and value;
PROVIDED, THAT, (i) the replacement Equipment shall be acquired
prior to or concurrently with any disposition of the Equipment that
is to be replaced, (ii) the replacement Equipment shall be free and
clear of Liens other than Permitted Liens, (iii) Borrower shall give
Lender at least five (5) days prior written notice of such
disposition, and (iv) Borrower shall deliver to Lender all proceeds
realized from any such disposition for application to the
Obligations.
None of the provisos or other exceptions to the restriction against
dispositions of Equipment or Offshore Platforms set forth in this SECTION
6.4 shall be construed to allow any disposition, whether by ERT or
otherwise, of a marine vessel on which Lender has been granted a Lien,
without the prior written consent of Lender."
2.18 AMENDMENT TO COVENANT REGARDING ENVIRONMENTAL LAWS. SECTION
8.1(U)(II) of the Loan Agreement, which pertains to maintenance of a system to
monitor compliance with Environmental Laws, is hereby amended and restated in
its entirety to read as follows:
"(ii) Establish and maintain a system to assure and monitor
continued compliance with all applicable Environmental Laws appropriate to
the nature of Borrower's business, and prepare a report that reviews the
adequacy and effectiveness of such system on an annual basis."
2.19 AMENDMENT TO COVENANT REGARDING EXCESS AVAILABILITY. SECTION 8.1(W)
of the Loan Agreement, which pertains to Excess Availability after giving effect
to certain acquisitions, is hereby amended and restated in its entirety to read
as follows:
"(W) EXCESS AVAILABILITY. After the occurrence of any Default or
Event of Default, maintain Excess Availability of (i) no less than Two
Million Dollars ($2,000,000) immediately prior to and after giving effect
to the acquisition of any oil and gas Properties by ERT, and (ii) no less
than Four Million Dollars ($4,000,000) immediately prior to and after
giving effect to the acquisition (excluding a lease arrangement) and
deployment of both a barge and a dive support vessel by Cal Dive."
2.20 ADDITION OF COVENANT REGARDING ANNUAL MAINTENANCE CAPITAL EXPENDITURE
REPORT. SECTION 8.1 of the Loan Agreement is hereby amended by adding thereto a
new SUBSECTION 8.1(X) which shall read as follows:
"(X) ANNUAL MAINTENANCE CAPITAL EXPENDITURE REPORT. As soon as
available, and in any event no later than January 31 of each year during
the Original Term and Renewal Term, if applicable, deliver to Lender an
annual report (the "ANNUAL MAINTENANCE CAPITAL EXPENDITURE REPORT")
estimating the amount and nature of Maintenance Capital Expenditures
needed to be incurred by Borrower during the next
FIFTH AMENDMENT -Page 10
April 29, 1997
calendar year to maintain Borrower's fleet of marine vessels in good
operating condition."
2.21 ADDITION OF COVENANT REGARDING REPORTING OF LOCATIONS OF MARINE
VESSELS. SECTION 8.1 of the Loan Agreement is hereby amended by adding thereto a
new SUBSECTION 8.1(Y) which shall read as follows:
"(Y) REPORTING OF LOCATIONS OF MARINE VESSELS. Concurrently with the
delivery of the monthly unaudited interim financial statements of Borrower
and its Subsidiaries, as required by Section 8.1(J)(ii), deliver to Lender
a report identifying by name and location, the marine vessels of Borrower
and its Subsidiaries that, as of the end of the month covered by the
monthly unaudited financial statements then delivered to Lender, are
operating in waters outside of the territorial jurisdiction of the United
States."
2.22 AMENDMENT TO COVENANT REGARDING OPERATING LEASES AND TIME CHARTER.
SECTION 8.2(U) of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"(U) LEASES. Become a lessee under (i) any operating lease (other
than a lease under which Borrower is lessor) of Property if the aggregate
Rentals payable during any current or future period of twelve consecutive
months under the lease in question and all other leases under which
Borrower is then lessee (other than the Time Charter) would exceed
$750,000; or (ii) the Time Charter, unless the terms and conditions
thereof are approved by Borrower's Board of Directors and acceptable to
Lender."
2.23 AMENDMENT TO FINANCIAL COVENANTS. SECTION 8.3 of the Loan Agreement
is hereby amended and restated in its entirety to read as follows:
"8.3. SPECIFIC FINANCIAL COVENANTS. During the term of this
Agreement, and thereafter for so long as there are any Obligations to
Lender, Borrower covenants that, unless otherwise consented to by Lender
in writing, it shall:
(A) MAXIMUM INDEBTEDNESS. Not incur or allow to exist
Indebtedness, as calculated at any time and from time to time, on a
Consolidated basis, in excess of Sixty Million Dollars ($60,000,000).
(B) FIXED CHARGE RATIO. As calculated on the last day of each
quarter for the twelve (12) consecutive months then ended, maintain, on a
Consolidated basis, a Fixed Charge Ratio of not less than 4.00 to 1.00."
2.24 AMENDMENT TO COVENANT REGARDING CHANGES IN MANAGEMENT AND OWNERSHIP.
SECTION 10.1(L) of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
FIFTH AMENDMENT -Page 11
April 29, 1997
"(L) CHANGE OF MANAGEMENT OR OWNERSHIP. (i) Two (2) or more members
of the Management Group shall cease to be employed by Borrower in a
management capacity or (ii) the Management Group shall cease to control
more than twenty percent (20%) of the issued and outstanding capital stock
of Cal Dive, or (iii) Cal Dive shall cease to own and control,
beneficially and of record eighty percent (80%) of the issued and
outstanding capital stock of ERT. Notwithstanding the foregoing, at any
time after an Initial Public Offering the occurrence of the events
described in CLAUSES (I) and (II) above shall no longer constitute an
Event of Default under this Agreement."
2.25 AMENDMENT TO FORM OF EQUIPMENT NOTE. EXHIBIT B of the Loan Agreement,
the form of Equipment Note, is hereby deleted in its entirety and replaced with
EXHIBIT B attached hereto.
2.26 AMENDMENT TO CONTINGENCY RESERVE TERMS. EXHIBIT C of the Loan
Agreement, the Contingency Reserve Terms, is hereby deleted in its entirety and
replaced with EXHIBIT C attached hereto.
2.27 AMENDMENT TO BUSINESS LOCATIONS. EXHIBIT D of the Loan Agreement,
which lists all of the Borrower's business locations, is hereby deleted in its
entirety and replaced with EXHIBIT D attached hereto.
2.28 AMENDMENT TO CAPITAL STRUCTURE. EXHIBIT H of the Loan Agreement, the
capital structure of the Borrower, is hereby deleted in its entirety and
replaced with EXHIBIT H attached hereto.
2.29 AMENDMENT TO SHAREHOLDERS AGREEMENTS. EXHIBIT I of the Loan
Agreement, which describes all agreements and instruments binding on any of the
Borrower's shareholders relating to their ownership of shares of capital stock,
is hereby deleted in its entirety and replaced with EXHIBIT I attached hereto.
2.30 AMENDMENT TO PENSION PLANS. EXHIBIT L of the Loan Agreement, which
describes all of the Borrower's pension plans, is hereby deleted in its entirety
and replaced with EXHIBIT L attached hereto.
2.31 AMENDMENT TO TAX LIABILITIES. EXHIBIT M of the Loan Agreement, which
describes all material claims or questions concerning the Borrower's tax
liability, is hereby deleted in its entirety and replaced with EXHIBIT M
attached hereto.
2.32 AMENDMENT TO ENVIRONMENTAL LAWS. EXHIBIT P of the Loan Agreement,
which describes all existing violations of the Environmental Laws by the
Borrower, is hereby deleted in its entirety and replaced with EXHIBIT P attached
hereto.
2.33 AMENDMENT TO SECURITY OBLIGATIONS. EXHIBIT Q of the Loan Agreement,
which describes the Borrower's surety obligations, is hereby deleted in its
entirety and replaced with EXHIBIT Q attached hereto.
FIFTH AMENDMENT -Page 12
April 29, 1997
2.34 AMENDMENT TO FORM OF COMPLIANCE CERTIFICATE. EXHIBIT T of the Loan
Agreement, the form of Compliance Certificate, is hereby deleted in its entirety
and replaced with EXHIBIT T attached hereto.
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 Lender:
(a) Lender shall have received this Amendment, duly executed by each
Borrower;
(b) Lender shall have received the Equipment Note in the form of
EXHIBIT B attached hereto, duly executed by each Borrower;
(c) Lender shall have received the Supplement No. 2 to First
Preferred Fleet Mortgage in the form of EXHIBIT V attached hereto, duly
executed by Cal Dive;
(d) a company general certificate certified by the Secretary or
Assistant Secretary of Cal Dive acknowledging (A) that Cal Dive's Board of
Directors has adopted, approved, consented to and ratified resolutions
which authorize the execution, delivery and performance by Cal Dive of
this Amendment and all other documents, agreements and promissory notes
contemplated herein, and (B) the names of the officers of the Cal Dive
authorized to sign this Amendment and all other documents, agreements and
promissory notes contemplated herein (including the certificates
contemplated herein) together with specimen signatures of such officers,
(e) a company general certificate certified by the Secretary or
Assistant Secretary of ERT acknowledging (A) that ERT's Board of Directors
has adopted, approved, consented to and ratified resolutions which
authorize the execution, delivery and performance by the Borrower of this
Amendment and all other documents, agreements and promissory notes
contemplated herein, and (B) the names of the officers of ERT authorized
to sign this Amendment and all other documents, agreements and promissory
notes contemplated herein (including the certificates contemplated herein)
together with specimen signatures of such officers,
(f) 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;
FIFTH AMENDMENT -Page 13
April 29, 1997
(g) 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 Lender; and
(h) 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 Lender
and its legal counsel.
ARTICLE IV
LIMITED WAIVER
4.01 LIMITED WAIVER. By execution of this Amendment and upon satisfaction
of the conditions set forth in SECTION 3.01 of this Amendment, Lender hereby
waives any Default or Event of Default arising under the Loan Agreement solely
by reason of: (i) the Borrower's violation of SECTION 8.2(E) of the Loan
Agreement resulting from the Borrower entering into the Joint Venture in
accordance with the terms described in RECITAL C(II) above; and (ii) the
Borrower's violation of SECTION 8.2(I) of the Loan Agreement resulting from the
Stock Sale in accordance with the terms described in RECITAL C(I) above. Except
as specifically provided in this SECTION 4.01, nothing contained in this
Amendment shall be construed as a waiver by Lender of any other covenant or
provision of the Loan Agreement, this Amendment or of any other Loan Document,
and the failure of Lender at any time or times hereafter to require strict
performance by Borrower of any provision thereof shall not waive, affect or
diminish any right of Lender to thereafter demand strict compliance therewith.
Lender hereby reserves all rights granted under the Loan Agreement, this
Amendment and any other Loan Document.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 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. Borrowers and Lender 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.
5.02 REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrowers and will not violate the Articles or Certificate of
Incorporation or Bylaws of either 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
FIFTH AMENDMENT -Page 14
April 29, 1997
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 Lender;
(e) each Borrower is in full compliance with all 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 hereto as EXHIBIT U.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 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 Lender or any closing shall affect the representations and
warranties or the right of Lender to rely upon them.
6.02 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.
6.03 EXPENSES OF LENDER. As provided in the Loan Agreement, Borrowers
agree to pay on demand all costs and expenses incurred by Lender 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 Lender's legal counsel, and all costs and expenses incurred by
Lender 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 Lender's legal counsel.
6.04 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.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of Lender and Borrowers and their respective successors and
assigns, except that Borrowers may not assign or transfer any of their rights or
obligations hereunder without the prior written consent of Lender.
FIFTH AMENDMENT -Page 15
April 29, 1997
6.06 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.
6.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by Lender
to or for any breach of or deviation from any covenant or condition by Borrowers
shall be deemed a consent to or waiver of any other breach of the same or any
other covenant, condition or duty.
6.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS (OTHER
THAN (I) THAT CERTAIN DEED OF COVENANTS, DATED NOVEMBER 29, 1996, EXECUTED BY
CAL DIVE IN FAVOR OF LENDER, (II) THAT CERTAIN MORTGAGE, DATED SEPTEMBER 16,
1996, EXECUTED BY CAL DIVE IN FAVOR OF LENDER AND RECORDED WITH THE REGISTRAR OF
BARBADIAN SHIPS LONDON, PURSUANT TO WHICH CAL DIVE GRANTED LENDER A LIEN ON THE
"BALMORAL SEA", (III) THAT CERTAIN MORTGAGE, DATED SEPTEMBER 16, 1996, EXECUTED
BY CAL DIVE IN FAVOR OF LENDER AND RECORDED WITH THE REGISTRAR OF BAHAMIAN SHIPS
LONDON, PURSUANT TO WHICH CAL DIVE GRANTED LENDER A LIEN ON THE "UNCLE XXXX",
AND (IV) THAT CERTAIN MORTGAGE, DATED OCTOBER 19, 1995, EXECUTED BY CAL DIVE IN
FAVOR OF LENDER AND RECORDED WITH THE REGISTRAR OF BAHAMIAN SHIPS LONDON,
PURSUANT TO WHICH CAL DIVE GRANTED LENDER A LIEN ON THE "WITCH QUEEN"), EXECUTED
PURSUANT 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.
6.10 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 HEREOF 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.
6.11 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
FIFTH AMENDMENT -Page 16
April 29, 1997
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER. BORROWERS
HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE LENDER, ITS
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 LENDER, ITS 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
LENDER, ITS 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 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
FIFTH AMENDMENT -Page 17
April 29, 1997
IN WITNESS WHEREOF, this Amendment has been executed as of April __, 1997.
BORROWERS:
CAL DIVE INTERNATIONAL, INC.
By: _____________________________________
S. Xxxxx Xxxxxx, Xx.,
Executive Vice President and Chief
Financial Officer
ENERGY RESOURCE TECHNOLOGY, INC.
By: _____________________________________
S. Xxxxx Xxxxxx, Xx., Treasurer
LENDER:
FLEET CAPITAL CORPORATION, formerly
known as Shawmut Capital Corporation
By: _____________________________________
Xxxxx XxxXxxxx, Vice President
EXHIBITS:
B - Form of Equipment Note
C - Contingency Reserve Terms
D - Business Locations
H - Capital Structure
I - Shareholder Agreements
L - Pension Plans
M - Tax Liability
P - Existing Environmental Liability
Q - Surety Obligations
T - Form of Compliance Certificate
U - Amendments to Articles/Certificate of Incorporation and Bylaws
V - Supplement No. 2 to First Preferred Fleet Mortgage
FIFTH AMENDMENT -Page 18
April 29, 1997
