EXHIBIT 4.4
CREDIT AGREEMENT
dated as of August 16, 2000
among
CAL DIVE I - TITLE XI, INC.,
as Shipowner
GOVCO INCORPORATED,
as Primary Lender
CITIBANK, N.A.,
as Alternate Lender
CITIBANK INTERNATIONAL plc,
as Facility Agent
and
CITICORP NORTH AMERICA, INC.,
as Administrative Agent for the Primary Lender and
the commercial paper holders of the Primary Lender.
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION...................................................2
1.01 Defined Terms...............................................................................2
1.02 Principles of Construction..................................................................2
SECTION 2. THE CREDIT FACILITY..........................................................................2
2.01 Amount......................................................................................2
2.02 Availability................................................................................3
2.03 Disbursements and Minimum Amount of Utilizations............................................3
2.04 Relationship of Floating Rate Note and Fixed Rate Bond(s)...................................3
2.05 Trigger Event...............................................................................3
SECTION 3. DISBURSEMENT REQUIREMENTS....................................................................4
3.01 Disbursement Procedures.....................................................................4
SECTION 4. TERMS OF THE CREDIT..........................................................................5
4.01 Principal Repayment.........................................................................5
4.02 Interest Payment............................................................................5
4.03 Prepayment..................................................................................7
4.04 Recapture...................................................................................8
4.05 Evidence of Debt............................................................................8
4.06 Limit of United States Guarantee............................................................9
SECTION 5. CONDITIONS PRECEDENT..........................................................................9
5.01 Conditions Precedent to Lenders' Obligations Under this Agreement...........................9
5.02 Conditions Precedent to Each Disbursement..................................................11
SECTION 6. FEES AND EXPENSES............................................................................11
6.01 Fees.......................................................................................11
6.02 Taxes......................................................................................11
6.03 Expenses...................................................................................12
6.04 Additional or Increased Costs..............................................................13
SECTION 7. PAYMENTS....................................................................................14
7.01 Method of Payment..........................................................................14
7.02 Application of Payments....................................................................15
SECTION 8. REPRESENTATIONS AND WARRANTIES BY THE SHIPOWNER.............................................16
8.01 Representations and Warranties of the Shipowner............................................16
8.02 Agreements of the Shipowner................................................................18
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SECTION 9. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT.............................................19
9.01 Cancellation...............................................................................19
9.02 Events of Default..........................................................................19
SECTION 10. GOVERNING LAW AND JURISDICTION.............................................................20
10.01 Governing Law..............................................................................20
10.02 Submission to Jurisdiction.................................................................20
10.03 Waiver of Security Requirements............................................................21
10.04 No Limitation..............................................................................21
SECTION 11. MISCELLANEOUS..............................................................................21
11.01 Computations...............................................................................21
11.02 Notices....................................................................................21
11.03 Disposition of Indebtedness................................................................23
11.04 Disclaimer.................................................................................23
11.05 No Waiver; Remedies Cumulative.............................................................24
11.06 Currency...................................................................................24
11.07 Severability...............................................................................24
11.08 Amendment or Waiver........................................................................24
11.09 Indemnification............................................................................24
11.10 Benefit of Agreement.......................................................................25
11.11 Waiver of Jury Trial.......................................................................25
11.12 Execution in Counterparts..................................................................25
11.13 Shipowner Documents........................................................................25
11.14 Entire Agreement...........................................................................26
11.15 No Proceedings.............................................................................26
SECTION 12. ARRANGEMENTS AMONG THE AGENTS AND THE LENDERS..............................................26
12.01 Appointment................................................................................26
12.02 Rights of Facility Agent...................................................................26
12.03 Duties.....................................................................................27
12.04 Limitation on Obligations of Facility Agent................................................27
12.05 Indemnification by Lenders.................................................................28
12.06 Limitation on Responsibility...............................................................28
12.07 No Claims on Employees of Facility Agent...................................................28
12.08 Banking Business...........................................................................28
12.09 Resignation or Termination of Facility Agent...............................................29
12.10 Successor to Facility Agent................................................................29
12.11 Discharge of Obligations...................................................................29
12.12 Responsibilities of Lenders................................................................29
12.13 Agency Division............................................................................30
12.14 Administrative Agent.......................................................................30
12.15 Facility Agent Only Agent for the Lenders..................................................30
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Exhibits
Exhibit 1 Schedule of Definitions
Annexes
Annex A Form of Certificate Authorizing Disbursements
Annex B Form of No Proceedings Letter
iii
THIS
CREDIT AGREEMENT, dated as of August __, 2000 is made by and among
CAL DIVE I - TITLE XI, INC., a Texas corporation (the "Shipowner"), GOVCO
INCORPORATED, a Delaware corporation (the "Primary Lender"), CITIBANK, N.A., a
national banking association (the "Alternate Lender"), CITIBANK INTERNATIONAL
plc, a bank organized and existing under the laws of England, as facility agent
for both the Primary Lender and the Alternate Lender (and their respective
successors and assigns) with respect to the Floating Rate Note, and its
permitted successors and assigns (in such capacity, the "Facility Agent"), and
CITICORP NORTH AMERICA, INC., a Delaware corporation, as administrative agent
for the Primary Lender and the commercial paper holders of the Primary Lender
(and their respective successors and assigns) (in such capacity, together with
its permitted successors and assigns, the "Administrative Agent," and together
with the Facility Agent, the "Agents"). As used herein, the term "Lender" shall
mean either the Primary Lender or the Alternate Lender, as the case may be,
depending on which of the two parties made or will make the relevant
disbursement of funds under this Agreement; provided, however, that if the
Primary Lender assigns its rights under this Agreement to the Alternate Lender,
the term "Lender," as used herein, shall mean only the Alternate Lender. The
term "Lenders," as used herein, shall mean collectively the Primary Lender and
the Alternate Lender.
BACKGROUND
WHEREAS:
(A) by this Agreement, the Lenders have established a credit facility
(the "Credit Facility") in the amount of $138,478,000, pursuant to which the
Primary Lender may, in its discretion, subject to the terms and conditions
hereof, extend financing to the Shipowner (i) for the manufacture, construction,
fabrication, financing and purchase by the Shipowner of the Vessel; (ii) for the
payment of the related Construction Period Interest; and (iii) for the payment
of the Guarantee Fees;
(B) the establishment of the Credit Facility is in reliance upon the
commitment of the United States to guarantee the payment of the unpaid interest
on, and the unpaid balance of the principal of, the Floating Rate Note,
including interest accruing between the date of an Indenture Default under the
Floating Rate Note and the payment in full of the Guarantee;
(C) a condition to the Lenders' extension of the Credit Facility under
this Agreement is the Facility Agent's timely receipt of Certificates
Authorizing Disbursement and issuance of the Guarantee of the Floating Rate
Note;
(D) the Facility Agent will serve as facility agent for the benefit,
and on behalf, of each of the Lenders in connection with the Credit Facility,
this Agreement and the other related documents and the Administrative
Agent will act as an administrative agent for the Primary Lender and the Primary
Lender's commercial paper holders; and
(E) the Credit Facility may be utilized by the Shipowner in accordance
with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.01 Defined Terms. For the purposes of this Agreement, unless
otherwise defined herein, defined terms shall have the meanings specified in
Exhibit 1 hereto.
1.02 Principles of Construction.
(a) The meanings set forth for defined terms in this Agreement shall be
equally applicable to both the singular and plural forms of the terms defined.
(b) Unless otherwise specified, all references in this Agreement to
Annexes or Exhibits are to Annexes or Exhibits in or to this Agreement.
(c) The headings of the Sections in this Agreement are included for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 2. THE CREDIT FACILITY
2.01 Amount. The Lenders hereby establish the Credit Facility, upon the
terms and conditions set forth in this Agreement, in favor of the Shipowner in
the maximum amount of $138,478,000 (the "Credit Facility Amount"), to enable the
Shipowner to finance: (i) the manufacture, construction, fabrication, financing
and purchase of the Vessel; (ii) Construction Period Interest; and (iii) the
Guarantee Fees; all as set forth in Certificates Authorizing Disbursements
submitted in accordance with this Agreement. The Primary Lender intends (but is
not obligated) to fund the Credit Facility through the issuance and sale of
Commercial Paper to investors which is exempt from the registration requirements
of the United States Securities Act of 1933, as amended. The Primary Lender may,
at its option, elect at any time not to fund the Credit Facility or the
undisbursed portion thereof, in which case the Alternate Lender shall, subject
to the terms and conditions provided herein, fund the Credit Facility in the
amount (the "Available Amount") which is equal to the excess, if any, of the
Credit Facility Amount over the outstanding principal amount evidenced by the
Floating Rate Note, plus the aggregate outstanding principal amount evidenced by
Fixed Rate Bonds ("Outstanding Principal").
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2.02 Availability. Disbursements under the Credit Facility may be made
once a calendar month and up to and including the Final Disbursement Date.
"Final Disbursement Date" shall mean the earliest of (x) January 28, 2002, (y)
the date upon which the Trigger Event (as defined in Section 2.05) shall occur
or, (z) the date on which the Available Amount under the Credit Facility is
canceled in accordance with Section 9.01 or reduced to zero.
2.03 Disbursements and Minimum Amount of Utilizations. Upon
satisfaction of Sections 3.01, 5.01 and 5.02, disbursements shall be made by
advances from the Primary Lender or the Alternate Lender to the Shipowner
("Disbursements") in accordance with Section 3.01. Notwithstanding anything in
this Agreement to the contrary, the Shipowner may not request a Disbursement
under the Credit Facility for an amount (a) less than the smaller of (i)
$1,000,000 or (ii) the Available Amount or (b) more than the Available Amount.
2.04 Relationship of Floating Rate Note and Fixed Rate Bond(s).
Disbursements from the Credit Facility shall become the indebtedness of the
Shipowner to the Lenders under the Floating Rate Note. The Shipowner shall
redeem the Floating Rate Note in full by causing to be issued one or more Fixed
Rate Bonds and using the proceeds thereof to repay the Floating Rate Note in
full no later than the earliest of (i) the Payment Date next preceding four
years from the Delivery Date, (ii) January 28, 2006, or (iii) the date upon
which the Trigger Event shall occur. At its option, and from time to time, the
Shipowner may redeem all or any portion of the indebtedness under the Floating
Rate Note by causing a Fixed Rate Bond or series of Fixed Rate Bonds to be
issued at any time during or after the construction of the Vessel, so long as
such redemption of the Floating Rate Note does not occur later than the earliest
of (i) the Payment Date next preceding four years after the Delivery Date, (ii)
January 28, 2006, or (iii) the date upon which the Trigger Event shall occur,
and except for the final redemption or in the case of the Trigger Event, each
redemption is in a minimum amount of $50,000,000; and the Shipowner shall have
paid any amount payable under Section 4.04(a)(iv) or any other provision hereof
in connection therewith.
2.05 Trigger Event. (a) The Shipowner shall redeem the Floating Rate
Note in full by causing to be issued one or more Fixed Rate Bonds with a
Maturity date no later than (i) January 28, 2027, or (ii) the twenty fifth
anniversary of the Delivery Date upon the occurrence of a Trigger Event. A
"Trigger Event" shall mean (x) three hundred and sixty five (365) days from the
date when the ten (10) year Treasury constant maturity rate as reported by the
Federal Reserve Board in statistical release H.15 (519) (the "Treasury Rate")
first equals or exceeds eleven percent (11%) per annum, or (y) fifteen (15)
Business Days from the date at any time during said three hundred and sixty five
(365) day period when the Treasury Rate first equals or exceeds twelve percent
(12%) per annum; provided however, that in the event interest rates have
improved at the end of said three hundred and sixty five (365) day period, the
Shipowner may request the Secretary, at that
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time, to extend the three hundred and sixty five (365) day period, and the
Secretary, in his sole discretion, may grant or deny such request. If a Trigger
Event should occur, the Shipowner shall redeem the Floating Rate Note in full by
causing to be issued one or more Fixed Rate Bonds and using the proceeds thereof
to repay the Floating Rate Note in full.
(b) Nothing in this Section 2.05 shall prevent the Shipowner from
redeeming the Floating Rate Note by issuance of a fixed-rate obligation at any
time prior to maturity, including without limitation, the three hundred and
sixty five (365) day period referred to in Section 2.05(a).
(c) The failure of the Shipowner to redeem the Floating Rate Note and
to borrow the Available Amount by issuance of a fixed-rate obligation pursuant
to this Section 2.05, unless subsequently waived in writing by the Secretary,
shall constitute an Indenture Default without further notice to the Shipowner or
the Lenders being required under the Indenture or this Agreement.
(d) The Shipowner covenants for the benefit of the Secretary that it
shall arrange for an independent reporting service or bank acceptable to the
Secretary to send the Secretary, the Facility Agent, and the Shipowner a written
interest rate report once a month on the first business day of every month
(until such time as the Floating Rate Note is prepaid in full by a fixed rate
obligation). This interest rate report shall specify the Treasury Rate as of the
date of the report.
SECTION 3. DISBURSEMENT REQUIREMENTS
3.01 Disbursement Procedures. Upon receipt by the Facility Agent of
each Certificate Authorizing Disbursement at least five (5) Business Days prior
to the proposed disbursement date, the Primary Lender may, and if the Primary
Lender elects not to, the Alternate Lender shall, disburse funds in accordance
with the terms of such Certificate Authorizing Disbursement to the Shipowner, or
the Shipowner's designee, subject to the terms of this Agreement and such
Certificate Authorizing Disbursement; provided that, if the Certificate
Authorizing Disbursement and the request for disbursement referred to therein do
not specify a disbursement date, then the disbursement date shall be the fifth
Business Day (or such earlier or later Business Day as is requested by the
Shipowner and is acceptable to the disbursing Lender) following the Facility
Agent's receipt of such Certificate Authorizing Disbursement. Promptly following
each Disbursement, the Facility Agent shall transmit to the Indenture Trustee
and the Shipowner a copy of the Certificate Authorizing Disbursement, a
confirmation that the Disbursement was made, and a copy of Exhibit A to the
Floating Rate Note, updated to reflect such Disbursement and other intervening,
related events.
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SECTION 4. TERMS OF THE CREDIT
4.01 Principal Repayment. The Shipowner shall repay the Outstanding
Principal of the Floating Rate Note as follows:
(i) in installments in the principal amounts set forth in the
Amortization Schedule, Attachment 1 to the Indenture, on each Payment
Date commencing with the Payment Date occurring on the earlier of the
Payment Date next succeeding the Delivery Date of the Vessel or January
28, 2002, and continuing until the Payment Date before the earlier of
(x) the Payment Date next preceding four years from the Delivery Date,
or (y) January 28, 2006, and
(ii) the full amount of remaining Outstanding Principal, on
the earliest of (x) the Payment Date next preceding four years from the
Delivery Date, (y) January 28, 2006, or (x) the date upon which the
Trigger Event shall occur.
4.02 Interest Payment.
(a) On each Interest Payment Date, the Shipowner shall pay to the
Indenture Trustee, on behalf of the Person(s) entitled thereto, interest on the
Outstanding Principal in arrears, calculated at an interest rate per annum equal
to the Applicable Interest Rate therefor, as determined for each successive
Interest Period. The Indenture Trustee shall calculate the Applicable Interest
Rate based on information provided (i) by the Administrative Agent to the
Facility Agent if the Primary Lender is the Lender, or (ii) by the Facility
Agent if the Alternate Lender is the Lender. From time to time, the
Administrative Agent or Facility Agent will confirm CP Rate, LIBOR, Base Rate,
and Applicable Interest Rate to the Indenture Trustee. In the event that the
Primary Lender assigns the financing of all or any portion of the amount
outstanding under the Credit Facility (whether or not evidenced by a Note) to
the Alternate Lender or other assignee permitted by the terms of this Agreement,
the interest rate on such amount shall be determined by the Facility Agent (and
the Facility Agent shall notify the Indenture Trustee thereof and the Indenture
Trustee shall confirm such interest rate based on information provided by the
Facility Agent) pursuant to clause (i) of the definition of Applicable Interest
Rate for the period prior to the effective date of such assignment and pursuant
to clause (ii) of such definition for all periods after such date.
(b) The Shipowner shall pay to the Facility Agent, on behalf of the
Person(s) entitled to any Unpaid Amount, on demand, interest on such Unpaid
Amount (to the extent permitted by applicable law) for each Post Maturity Period
at an interest rate per annum equal to the sum (the "Post Maturity Interest
Rate") of (1) two percent (2%), plus (2) the Applicable Interest Rate; provided,
that if such Unpaid Amount consists of principal on the Floating Rate Note as to
which guaranteed interest continues to accrue, the Post-Maturity Interest Rate
on such Unpaid Amount shall be limited to
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the incremental amount of additional interest required to be paid under this
Section 4.02(b) and shall equal two percent (2.0%) per annum. In the absence of
an Indenture Default, any interest which shall have accrued under this Section
4.02(b) in respect of an Unpaid Amount shall be due and payable and shall be
paid by the Shipowner on demand on such dates as the Person to whom such Unpaid
Amount is owed may specify by written notice to the Shipowner, or if there is an
Indenture Default, any interest which shall have accrued under this Section
4.02(b) in respect of an Unpaid Amount shall be due and payable immediately and
shall be paid by the Shipowner without demand and any payment by, or on behalf
of, the Shipowner hereunder shall be governed by Section 7.02 and the provisions
of the last paragraph of Section 9.02.
As used herein, "Unpaid Amount" means all or any part of principal,
accrued interest, fees or other amounts owing to the Agents or the Lenders under
this Agreement or the Floating Rate Note which is not paid in full when and as
due and payable, whether at Stated Maturity, by acceleration or otherwise, or
any sum due and payable by the Shipowner to the Agents or the Lenders under any
judgment of any court or arbitral tribunal in connection with this Agreement
which is not paid on the date of such judgment. "LIBOR" shall mean, in relation
to any Post Maturity Period (other than the first Post Maturity Period
contemplated by clause (iii) of Section 4.02(b)), an interest rate per annum
equal to (i) the rate of interest per annum (rounded upward, if necessary, to
the nearest 1/16 of 1%) last quoted by the principal London office of CITIBANK,
N.A., prior to the close of business at such London office on the Quotation Date
for the offering to leading banks in the London interbank market of U.S. Dollar
deposits on an overnight basis and in an amount comparable to the Unpaid Amount
to which LIBOR is to apply divided by (ii) one hundred percent (100%) minus the
Eurodollar Reserve Percentage. "Accelerated Repayment" shall mean any part of
the principal of the Floating Rate Note that became due and payable on a day
other than its Payment Date. "Post Maturity Period" shall mean with respect to
the period from the date an Unpaid Amount was due until such amount shall have
been paid in full, each successive period, the first of which shall start on the
date such Unpaid Amount was due (or the date of any such judgment or arbitral
award, if earlier) and each other of which shall start on the last day of the
preceding such period, and the duration of each of which shall be one day, or if
LIBOR applies, then from and including the Quotation Date for such Post Maturity
Period to but excluding the next Quotation Date or such other duration selected
by the Person to whom such Unpaid Amount is due; provided, however, that in the
case of any Accelerated Repayment, the first such Post Maturity Period
applicable thereto shall be of a duration equal to the unexpired portion of its
then applicable Interest Period. "Quotation Date" in relation to any Post
Maturity Period means the day on which quotations would ordinarily be given by
CITIBANK, N.A. in the London interbank market for dollar deposits for delivery
on the first day of that period; provided, however, that if, for any such Post
Maturity Period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
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4.03 Prepayment. (a) The Shipowner may from time to time prepay on any
Interest Payment Date all or any part of the Outstanding Principal evidenced by
the Floating Rate Note, provided that: (i) any partial prepayment shall be in a
minimum principal amount of $10,000,000, unless otherwise required by the
Indenture; (ii) the Shipowner shall have given the Facility Agent and the
Indenture Trustee prior written notice of such prepayment (which shall be not
less than 40 nor more than 60 days); (iii) the Shipowner shall have paid in full
all amounts due under this Agreement as of the date of such prepayment,
including, without limitation, interest which has accrued to the date of
prepayment on the amount prepaid and all other amounts payable hereunder
relating to such prepayment; (iv) any amount prepaid hereunder (other than the
Outstanding Principal amount thereof prepaid through the issuance of Fixed Rate
Bonds, the Outstanding Principal amount of which is subtracted from the Credit
Facility pursuant to the last sentence of Section 2.01) shall not be considered
part of the Available Amount; and (v) subject to Section 4.03(c), if the Lender
is the Primary Lender, the Shipowner shall pay to the Facility Agent, for the
benefit of the Primary Lender an amount equal to (x) the amount of yield that
the Primary Lender is required to pay to holders of its Commercial Paper during
the Liquidation Period (as defined below) on an amount of Commercial Paper
having an aggregate issue price equal to the amount of the Shipowner's
prepayment less (y) the amount of the estimated investment earnings, as
reasonably determined by the Facility Agent, on the prepayment amount during the
Liquidation Period. The "Liquidation Period" means the period from the date on
which a prepayment is made to the earliest date on which the Primary Lender's
total amount of Commercial Paper related to the funding of the Disbursements can
be reduced (without prepayment thereof) by an amount equal to the amount of the
Shipowner's prepayment. Prepayments shall be applied to the installments of
principal of the Credit Facility in the inverse order of their maturity, and, in
cases where more than one Note is outstanding, pro rata to each Note.
(b) Upon delivery to the Shipowner and the Secretary of the instrument
satisfying and discharging the Indenture contemplated by Section 12.01 of the
Exhibit 1 to the Indenture, all of the Shipowner's indebtedness, liabilities and
obligations under this Agreement and the Fee Letter shall become immediately due
and payable without demand upon, or notice to, the Shipowner.
(c) Notwithstanding any other provision to the contrary herein, the
Shipowner or the Secretary (after the Secretary's assumption of the Floating
Rate Note pursuant to Section 6.09 of Exhibit 1 to the Indenture) may from time
to time prepay all or any part of the principal amount of the Floating Rate Note
without any prepayment penalty or premium in accordance with Article III of
Exhibit 1 to the Indenture.
(d) Notwithstanding any other provision to the contrary herein, the
Shipowner shall have the right to prepay any portion of the Floating Rate Note
and redeem the Floating Rate Note by issuing one or more Fixed Rate
7
Bonds and using the proceeds thereof to prepay the Floating Rate Note so long as
it first obtains the Secretary's consent to the interest rate applicable to the
Fixed Rate Bond and, except for the final disbursement, such redemption equals
or exceeds $50,000,000 principal; and the Shipowner shall have paid any amount
payable under Section 4.04(a)(iv) or any other provision hereof in connection
therewith.
4.04 Recapture. (a) Upon the written request of the Facility Agent, the
Shipowner shall pay to the Facility Agent for the benefit of the applicable
Lender, such amounts as shall be sufficient (in the reasonable judgment of such
Lender) to compensate such Lender for any loss, expense or liability (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or redeployment of deposits from third parties or in connection with
obtaining funds to make or maintain any Disbursement) which such Lender
reasonably determines is attributable to:
(i) any failure by the Shipowner to make scheduled payments on a
Payment Date or any payment due in connection with any Redemption; or
(ii) any failure by the Shipowner to borrow any advance for which a
Certificate Authorizing Disbursement has been issued; or
(iii) any revocation of a notice of prepayment given pursuant to
Section 4.03(a); or
(iv) subject to the provisions of Section 4.03(c), any prepayment of
the Floating Rate Note (including, without limitation, due to the issuance of
any fixed rate bonds) other than on an Interest Payment Date after giving five
(5) Business Days' prior written notice to such Lender, the Facility Agent, and
the Indenture Trustee.
(b) Without prejudice to any other provision hereof (and at the
Shipowner's expense), such Lender shall use such reasonable efforts as it shall
determine in its sole discretion to minimize any loss, expense or liability to
the extent possible; provided that no Lender shall be obligated to take any
actions under this Section 4.04 if such Lender has determined, that such actions
would cause it to incur any material costs or expenses or would otherwise be
disadvantageous to it in any material respect.
(c) With respect to the Shipowner's obligations under Section
4.04(a)(iv), if the Shipowner shall at any time notify the Facility Agent and
the applicable Lender of its intention to pursue any such prepayment, the
Facility Agent and the applicable Lender shall reasonably cooperate with the
Shipowner in assessing and quantifying any loss, expense or liability the Lender
may incur pursuant to Section 4.04(a)(iv), so that the Shipowner may make an
informed decision as to the cost to it of any such prepayment.
4.05 Evidence of Debt. The Shipowner agrees that to evidence further
its obligation to repay all amounts disbursed under the Credit Facility, with
interest accrued thereon, it shall issue and deliver to the
8
Facility Agent, in accordance with the written instructions of the Facility
Agent, the Floating Rate Note. The Floating Rate Note shall (i) be in the form
of Exhibit 2 to the Indenture; (ii) bear the Secretary's Guarantee, and (iii) be
valid and enforceable as to its principal amount at any time only to the extent
of the aggregate amounts then disbursed and outstanding thereunder, and, as to
interest, only to the extent of the interest accrued thereon at the rate
guaranteed by the Secretary, with any interest in excess thereof being evidenced
by this Agreement.
4.06 Limit of United States Guarantee. None of the incremental amount
of interest required to be paid under Section 4.02(b), none of the fees, and
expenses arising under Sections 4.03, 4.04 and 6, and none of the Indemnified
Amounts, commissions, Taxes, Other Taxes, Post Maturity Interest Rate, or any
other charges, costs, expenses, or indebtedness owed by the Shipowner under this
Agreement to any Person is guaranteed by the United States. The Guarantee of the
United States extends only to the principal and interest owed under the
Obligations and only to the extent specified therein.
SECTION 5. CONDITIONS PRECEDENT
5.01 Conditions Precedent to Lenders' Obligations Under this Agreement.
(a) The obligations of the Lenders under this Agreement shall be subject to the
delivery to the Facility Agent of the documents indicated below on or before the
Closing Date:
(i) This Agreement, the Floating Rate Note and the Fee Letter. This
Agreement and the Fee Letter, each fully executed by the parties thereto in form
and substance satisfactory to the Lenders, which shall be in full force and
effect and the Floating Rate Note shall have been fully executed by the
Shipowner, endorsed by, or on behalf of, the United States, and delivered to the
Facility Agent, and all amounts then payable under the Fee Letter shall have
been paid to the Person entitled thereto.
(ii) Existence. Evidence in form and substance satisfactory to the
Lenders, that the Shipowner is duly organized, validly existing and in good
standing under the laws of the State of Texas, with full power, authority and
legal right to own its property and to carry on its business as now conducted.
(iii) Authority. Evidence in form and substance satisfactory to the
Lenders, of the authority of the Shipowner to execute, deliver, perform and
observe the terms and conditions of this Agreement, the Floating Rate Note, the
Fee Letter, and the Indenture and evidence of authority (including specimen
signatures) for each Person who, on behalf of the Shipowner, signed this
Agreement, the Floating Rate Note, the Fee Letter, and the Indenture, or will
otherwise act as representatives of the Shipowner in the operation of the Credit
Facility.
(iv) Governmental and Other Authorizations. Copies, certified as true
copies by a duly authorized officer of the Shipowner, of each consent,
9
license, authorization or approval of, and exemption by, any Governmental
Authority and any governmental authorities within the United States or
elsewhere, which are necessary or advisable (a) for the execution, delivery,
performance and observance by the Shipowner of this Agreement, the Floating Rate
Note, the Fee Letter, and the Indenture; and (b) for the validity, binding
effect and enforceability of this Agreement, the Floating Rate Note, the Fee
Letter, and the Indenture, or if none is necessary, a written certification from
the Shipowner that none is necessary.
(v) Legal Opinions. (1) Opinion of legal counsel for the Shipowner
concerning this Agreement, the Floating Rate Note, the Fee Letter, and the
Indenture; (2) Opinion of the Chief Counsel of the Maritime Administration dated
the Closing Date, signed by or on behalf of such Chief Counsel, addressed to the
Lenders and the Agents to the effect that the Guarantees and the Authorization
Agreement have been or will be duly authorized, executed and delivered by the
United States of America, and constitute legal, valid, and binding obligations
of the United States of America enforceable in accordance with their respective
terms; and (3) Opinion of Sher & ▇▇▇▇▇▇▇▇▇ addressed to the Lenders and the
Agents concerning this Agreement, the Fee Letter, the Indenture and the Floating
Rate Note.
(vi) Guarantee Commitment. A copy of the fully executed Guarantee
Commitment, which shall be in full force and effect until completion of the
Closing.
(vii) Authorization Agreement. The fully executed Authorization
Agreement, which shall be in full force and effect.
(viii) Indenture. The fully executed Indenture, which shall be in full
force and effect.
(ix) No Proceedings Letter. A letter from the Secretary in the form of
Annex B hereto agreeing to be bound by the covenants set forth in Section 11.15
hereof regarding the filing of certain proceedings against the Primary Lender.
(x) Closing Documents. A letter from the Shipowner to provide the
Facility Agent within a reasonable time after the Closing Date, with two (2)
originals or certified copies of the documents indicated in Section 5.01(a) and
each of the appendices and exhibits thereto executed on or prior to such date.
(b) In addition to the foregoing, the agreement of the Primary Lender
to make any Disbursements under this Agreement and any obligations of the
Alternate Lender to fund any Disbursements under this Agreement shall be subject
to the following additional conditions precedent being satisfied as of the
Closing Date:
10
(i) Fees and Expenses. All "Up-Front Fees" described in the Fee Letter
and all accrued fees and out-of-pocket expenses due and payable to the Facility
Agent or its counsel in accordance with the terms of this Agreement shall have
been fully paid or provisions satisfactory to the Facility Agent shall have been
made for payment of such amounts concurrently with the making of the initial
Disbursement.
(ii) No Restrictions. No law, regulation, ruling or other action of any
Governmental Authority shall be in effect or shall have occurred, the effect of
which would be to restrain, prevent or otherwise impose any materially adverse
conditions on any party's ability to fulfill its obligations under this
Agreement.
5.02 Conditions Precedent to Each Disbursement. The agreement of the
Primary Lender to fund any Disbursement under this Agreement and any obligations
of the Alternate Lender to fund any Disbursement under this Agreement shall be
subject only to the Facility Agent's receipt of a Certificate Authorizing
Disbursement, upon which each such Lender may conclusively rely.
SECTION 6. FEES AND EXPENSES
6.01 Fees. The Shipowner shall pay or cause to be paid to the Person
entitled thereto such fees and other amounts as are set forth in that certain
Fee Letter (as amended, restated or otherwise modified from time to time with
the prior written consent of the Secretary, the "Fee Letter") dated as of August
__, 2000 between the Shipowner and the Agents, in each case when and as due.
6.02 Taxes.
(a) The Shipowner agrees to pay all amounts owing by it under this
Agreement or the Floating Rate Note free and clear of and without deduction for
any and all present and future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding in the case of
each Lender, taxes imposed on its income, and franchise taxes imposed on it in
lieu of income taxes, by either (i) the jurisdiction under the laws of which
such Lender is organized or any political subdivision thereof, or (ii) the
jurisdiction of such Lender's applicable lending office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). In addition, the Shipowner agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Floating Rate
Note or from the execution, delivery, or registration of, or otherwise with
respect to, this Agreement or the Floating Rate Note (hereinafter referred to as
"Other Taxes").
11
(b) The Shipowner further agrees:
(i) that, if the Shipowner is prevented by operation of law from paying
any such Taxes or Other Taxes, or if any such Taxes or Other Taxes are required
to be deducted or withheld, then the fees or expenses required to be paid under
this Agreement shall, on an after-tax basis, be increased by the amount
necessary to yield to the Lenders fees or expenses in the amounts provided for
in this Agreement after the provision for the payment of all such Taxes and
Other Taxes;
(ii) that the Shipowner shall, at the request of any Lender or any
Agent, execute and deliver to such Lender or Agent, as the case may be, such
further instruments as may be necessary or desirable to effect the payment of
the increased amounts as provided for in subsection (i) above; provided,
however, that the Shipowner may not amend the Floating Rate Note without the
prior written consent of the Secretary;
(iii) that the Shipowner shall hold the Lenders and the Agents harmless
from and against the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 6.02) and any and all liabilities (including, without
limitation, penalties, interest and expenses) arising from, or with respect to,
any Taxes or Other Taxes (whether or not properly or legally asserted) and
whether paid, or payable, by the Shipowner, the Lenders, or any other Person;
(iv) that, at the request of any Lender or any Agent, the Shipowner
shall provide such Lender or Agent within the later of thirty (30) calendar days
after such request or thirty (30) calendar days after the payment of such Taxes
or Other Taxes, a copy evidencing the payment of any Taxes or Other Taxes by the
Shipowner; and
(v) that each payment under this Section 6.02 shall be made within
thirty (30) days from the date the Facility Agent on behalf of the applicable
Lender makes written demand therefor. Each demand for payment by such Lender
under Section 6.02(b)(v) for amounts paid or incurred by the Lenders or itself
shall be accompanied by a certificate (with accompanying documentation
supporting the demand) showing in reasonable detail the basis for the
calculation of the amounts demanded, which certificate, in the absence of
manifest error, shall be conclusive and binding for all purposes.
(c) Notwithstanding anything to the contrary contained herein, the
agreements in this Section 6.02 shall survive the termination of this Agreement
and the payment of the Floating Rate Note and all other amounts due hereunder.
6.03 Expenses. The Shipowner agrees, whether or not the transactions
hereby contemplated shall be consummated, to pay, or reimburse the Agents and
the Lenders, respectively, promptly upon demand for the payment of all
reasonable and duly documented costs and expenses arising in connection
12
with the preparation, printing, execution, delivery, registration,
implementation, modification of or waiver or consent under this Agreement, the
Floating Rate Note or the Indenture, including, without limitation, the
reasonable and duly documented out-of-pocket expenses of the Agents and the
Lenders (incurred in respect of telecommunications, mail or courier service, and
travel), and the fees and expenses of counsel for the Agents and the Lenders.
The Shipowner shall also pay all of the costs and expenses (including, without
limitation, the fees and expenses of counsel) incurred by or charged to the
Agents or the Lenders in connection with the amendment or enforcement of this
Agreement, the Floating Rate Note or the Indenture or the protection or
preservation of any right or claim of the Agents or the Lenders arising out of
this Agreement, the Floating Rate Note or the Indenture.
6.04 Additional or Increased Costs.
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining the
Disbursements or the Credit Facility, then the Shipowner shall from time to
time, upon demand by such Lender, pay to such Lender additional amounts
sufficient to compensate such Lender for such increased cost.
(b) If any Lender determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender, the Shipowner shall
immediately pay to the Facility Agent (for the benefit of such Lender), from
time to time as specified by the Facility Agent (on behalf of such Lender),
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of its
commitment to lend hereunder.
(c) Each Lender shall take such reasonable steps as it shall determine
to minimize amounts demanded under this Section 6.04; provided that no Lender
shall be obligated to take any actions under this Section 6.04 if such Lender
has determined, that such actions would cause it to incur any material costs or
expenses or would otherwise be disadvantageous to it in any material respect. In
the event that a Lender transfers the booking office of the Credit Facility or
the Floating Rate Note to minimize amounts demanded under this Section 6.04, any
costs and expenses incurred in such transfer shall be paid by the Shipowner on
demand by such Lender, provided, however, that any requirements imposed by this
Section 6.04 on the Shipowner shall be no more burdensome than those imposed by
the Lender on its highest rated and most favored customers who are subject to
similar requirements.
13
(d) Each demand for payment by the Facility Agent (on behalf of any
Lender) under this Section 6.04 shall be accompanied by a certificate showing in
reasonable detail the basis for the calculation of the amounts demanded, which
certificate, in the absence of manifest error, shall be conclusive and binding
for all purposes.
(e) The Facility Agent on behalf of each Lender shall notify the
Shipowner of any event occurring after the date of this Agreement which entitles
such Lender to compensation pursuant to this Section 6.04, as promptly as
practicable, and in any event within ninety (90) days after it has knowledge of
such event and has determined that a request for compensation hereunder shall be
made. The Shipowner shall not be obligated to reimburse any Lender for any loss
or cost incurred more than ninety (90) days prior to delivery of notice to the
Shipowner by the Lender requesting compensation under this Section 6.04.
SECTION 7. PAYMENTS
7.01 Method of Payment.
(a) (i) All payments to be made by the Shipowner under this Agreement
and the Floating Rate Note shall be made without set-off or counterclaim in
Dollars in immediately available and freely transferable funds no later than
11:00 A.M. (
New York City time) on the date on which due. Payments made after
such time on any date shall be deemed to have been received on the next
succeeding Business Day. Except as provided in Section 7.01(a)(ii), all payments
to be made by the Shipowner or the Agents hereunder shall be made to (A) the
Primary Lender (for the account of Govco Incorporated, its successors and
assigns), (B) the Alternate Lender (for the account of Citibank, N.A., its
successors and assigns), (C) the Facility Agent (for the account of Citibank
International plc, its successors and assigns), (D) the Administrative Agent
(for the account of Citicorp North America, Inc., its successors and assigns),
or (E) any other Lender (for the account of such Lender, its successors and
assigns), in each case to the Facility Agent (for the account of Citibank
International plc, its successors and assigns) at Citibank, N.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, DDA. Account No. ▇▇▇▇▇▇▇▇, Attn: Loans Agency
- Cal Dive. Upon receipt thereof by the Facility Agent, the Facility Agent shall
forthwith forward such funds to the party entitled thereto pursuant to the
written instructions provided by such party to the Facility Agent in accordance
with Section 11.02.
(ii) The Shipowner shall pay the principal and the guaranteed
amount of the Applicable Interest Rate on the Floating Rate Note to the
Indenture Trustee and all other amounts due under this Agreement directly to the
Person entitled thereto, in each case, by wire transfer in same day and
immediately available and freely transferable funds. Wire transfer instructions
shall be provided to the Shipowner. Until further notice, wire instructions for
the Indenture Trustee are as follows: Wilmington Trust Company, ABA #▇▇▇▇▇▇▇▇▇,
A/C #52091-0, Re: CAL DIVE I, Attention ▇▇▇▇ St. Amand.
14
(b) Except as otherwise provided herein, whenever any payment would
otherwise fall due on a day that is not a Business Day, the due date for payment
shall be the immediately succeeding Business Day, and interest and fees shall be
computed in accordance with Section 11.01.
(c) Whenever a sum is required to be paid to the Facility Agent under
this Agreement for the account of another Person, the Facility Agent shall not
be obligated to make such sum available to such other Person unless and until
the Facility Agent shall have established to its satisfaction that it has
actually received payment of such sum. Notwithstanding the foregoing, unless it
has received actual notice to the contrary, the Facility Agent may (but shall
not be obligated to) assume on the date of any Disbursement or any other payment
required to be made by any Lender hereunder that such Lender has made available
to the Facility Agent such Disbursement or other payment and the Facility Agent
may (but shall not be required to) make available to the Shipowner on such date
a corresponding amount in reliance upon such assumption. Additionally, the
Facility Agent may (but shall not be obligated to) assume on the date of any
payment required to be made by the Shipowner hereunder that the Shipowner has
made available to the Facility Agent such payment and the Facility Agent may
(but shall not be required to) make available to the Lenders on such date a
corresponding amount in reliance upon such assumption. If and to the extent that
either (i) the Lender shall not in fact have made such Disbursement or other
payment available to the Facility Agent and the Facility Agent has made
available a corresponding amount to the Shipowner in reliance on the
above-described assumptions or (ii) the Shipowner has not in fact made such
payment and the Facility Agent has made available a corresponding amount to the
Lender in reliance on the above-described assumptions, then, in either such
case, such Lender agrees to repay to the Facility Agent forthwith on demand such
corresponding amount together with an amount sufficient to indemnify the
Facility Agent against any cost or loss it may have suffered or incurred by
reason of its having paid out such sum prior to receipt thereof.
7.02 Application of Payments. In the absence of an Indenture Default,
the Lenders shall each apply payments received by them under this Agreement and
the Floating Rate Note (whether at Stated Maturity, by reason of acceleration,
prepayment or otherwise), in the following order of priority: (i) interest due
pursuant to Section 4.02(a); (ii) installments of principal due; (iii) interest
due pursuant to Section 4.02(b) other than the amount described in clause (i)
above; (iv) all amounts due under the Fee Letter; and (v) all other amounts due
under this Agreement and not otherwise provided for in this Section 7.02. Upon
the occurrence of an Indenture Default, the Lenders shall each hold any payments
they receive after an Indenture Default from, or on behalf of, the Shipowner
under this Agreement, the Fee Letter and any related agreement (excluding the
Floating Rate Note) and shall promptly deliver such payments to the Secretary if
the Secretary has been required to honor a Guarantee as a result of said
Indenture Default. All such amounts received during an Indenture Default and
delivered to the Secretary in accordance with
15
the preceding sentence shall be applied first to pay, satisfy and discharge all
amounts owed by the Shipowner to the Secretary under the Secretary's Note and
the Mortgage and then to pay, satisfy and discharge any and all amounts owed to
the Lenders or the Agents.
SECTION 8. REPRESENTATIONS AND WARRANTIES BY THE SHIPOWNER
8.01 Representations and Warranties of the Shipowner. The Shipowner
represents and warrants to the Agents and the Lenders that, as of the Closing
Date:
(a) Existence and Authority. The Shipowner is duly organized, validly
existing under the laws of the State of Texas, is in good standing under the
laws of the State of Texas, has been duly qualified to do business in, and is in
good standing as a foreign corporation in each jurisdiction in which the conduct
of its business or the ownership of its properties requires it to be so
qualified, and has full power, authority and legal right to own its properties
and conduct its business as it is presently conducted.
The Shipowner has full power, authority and legal right (i) to execute
and deliver this Agreement, the Floating Rate Note and the Indenture, (ii) to
perform and observe the terms and provisions of each of said documents to be
performed or observed by it, (iii) to consummate the transactions contemplated
thereby and (iv) to own its properties (including, without limitation, the
Vessel owned or to be owned by it) and conduct its business as presently
conducted.
(b) Government and Other Authorizations. All consents, licenses,
authorizations and approvals of, and exemptions by, any Governmental Authority
and any governmental authorities within the United States or elsewhere, having
jurisdiction over the Shipowner, and any other Persons that are required: (i)
for the execution, delivery, performance and observance by the Shipowner of this
Agreement, the Floating Rate Note, and the Indenture; and (ii) for the validity,
binding effect and enforceability of this Agreement, the Floating Rate Note, and
the Indenture have been obtained and are in full force and effect; except that
no representation or warranty is made with respect to state security or Blue Sky
laws in connection with the issuance or distribution of the Floating Rate Note.
(c) Restrictions. The execution, delivery and performance or observance
by the Shipowner of the terms of, and consummation by the Shipowner of the
transactions contemplated by, this Agreement, the Floating Rate Note, and the
Indenture do not and will not conflict with or result in a breach or violation
of: (i) the charter, by-laws or other organizational documents of the Shipowner;
(ii) any federal or state law of the United States or any other constitutional
provision or regulation of any Governmental Authority having jurisdiction over
the Shipowner (including, without limitation, any restriction on interest that
may be paid by the Shipowner); or (iii) any order, writ, injunction, judgment or
decree of any court or other tribunal having jurisdiction over the Shipowner.
Further, the execution, delivery and performance or observance by the Shipowner
of the terms of, and
16
consummation by the Shipowner of the transactions contemplated by, this
Agreement, the Floating Rate Note, and the Indenture does not and will not
conflict with or result in a breach of any agreement or instrument to which the
Shipowner is a party, or by which it or any of its revenues, properties or
assets may be subject, or (except as contemplated by the Shipowner's Documents)
result in the creation or imposition of any Lien upon any of the revenues,
properties or assets of the Shipowner pursuant to any such agreement or
instrument. "Lien" shall mean any lien, lease, mortgage, pledge, hypothecation,
preferential arrangement relating to payments, or other encumbrance or security
interest.
(d) Binding Effect. This Agreement, the Floating Rate Note, and the
Indenture, which have been executed on or before the date hereof, have been duly
executed and delivered by the Shipowner. Each of the Agreement, the Floating
Rate Note, and the Indenture constitutes, and each of the Agreement, the
Floating Rate Note, and the Indenture as it may hereafter be amended will
constitute, an obligation of the Shipowner which is legal, valid and binding
upon the Shipowner and enforceable against the Shipowner in accordance with its
respective terms, except to the extent limited by applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws of general application
relating to or affecting the enforcement of creditors rights are from time to
time in effect. All obligations evidenced by the Floating Rate Note will be
entitled to the benefits of the Guarantees and the Authorization Agreement.
(e) Choice of Law. The Shipowner hereby releases any right it has, or
may have, to revoke or challenge the choice of law and forum selection
provisions set forth in this Agreement.
(f) Legal Proceedings. No legal proceedings are pending or, to the best
of the Shipowner's knowledge, threatened before any court or governmental agency
which might: (i) materially and adversely affect the Shipowner's financial
condition, business or operations; (ii) restrain or enjoin or have the effect of
restraining or enjoining the performance or observance of the terms and
conditions of any of this Agreement, the Indenture or the Floating Rate Note; or
(iii) in any other manner question the validity, binding effect or
enforceability of any of the provisions of this Agreement, the Indenture or the
Floating Rate Note.
(g) Use of the Vessel. The Vessel will be used for lawful purposes.
(h) Shipowner Financial Statements. The Shipowner Financial Statements
present fairly the financial condition of the Shipowner at the date of such
statements. The Shipowner Financial Statements have been prepared in accordance
with generally accepted accounting principles in the United States consistently
applied. Except as fully reflected in the Shipowner Financial Statements, there
are no liabilities or obligations with respect to the Shipowner of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due) for the period to which the Shipowner Financial Statements relate that,
either individually or in the aggregate, would be material to the Shipowner.
Since the date of the most recent Shipowner
17
Financial Statements, there has been no material adverse change in the financial
condition, business prospects or operations of the Shipowner. "Shipowner
Financial Statements" shall mean the financial statements of the Shipowner
furnished to the Facility Agent prior to the date of this Agreement.
(i) No Taxes. There is no Tax imposed on or in connection with: (i) the
execution, delivery or performance of this Agreement, the Indenture or the
Floating Rate Note; (ii) the enforcement of this Agreement, the Indenture or the
Floating Rate Note; or (iii) on any payment to be made to any Lender under this
Agreement or the Floating Rate Note.
(j) Laws. None of the Indenture, the Floating Rate Note, the
transactions contemplated thereunder nor any Person party to the Indenture or
the Floating Rate Note is required to qualify under the Trust Indenture Act or
register or qualify under any federal securities law. Neither this Agreement,
nor the transactions contemplated hereunder, to the extent the same relate to
the Shipowner's obligation and duties hereunder, is required to qualify under
the Trust Indenture Act or register or qualify under any federal securities law.
(k) Defaults. No Event of Default has occurred and is continuing and no
event or circumstance has occurred and is continuing which with the passage of
time, the giving of notice or both would constitute an Event of Default.
8.02 Agreements of the Shipowner. The Shipowner agrees that until all
amounts owing under this Agreement and the Floating Rate Note have been paid in
full, the Shipowner will, unless the Agents and the Lenders shall have consented
in writing:
(a) Notice of Defaults. Promptly, but in no event later than ten (10)
days after the occurrence of an Indenture Default or an Event of Default of
which the Shipowner has knowledge, notify the Facility Agent and the
Indenture Trustee of any report required by the Shipowner Documents (or any
other document entered into by the Shipowner in connection therewith), and
send a copy thereof to the Facility Agent, in each case by facsimile or
hand delivery.
(b) Financial Reports. Beginning with the fiscal year in which this
Agreement is executed and continuing until all amounts owing under this
Agreement and the Floating Rate Note have been paid in full, the Shipowner
shall furnish to the Facility Agent (and the Facility Agent, upon receipt
thereof, shall furnish to each Lender and the Administrative Agent) a copy
of all financial reports furnished to the Secretary pursuant to the Title
XI Reserve Fund and Financial Agreement.
(c) Other Acts. From time to time, do and perform any and all acts and
execute any and all documents as may be necessary or as reasonably
requested by the Facility Agent or the Indenture Trustee in order to effect
the purposes of this Agreement and to protect the interests of the
18
Lenders in the Floating Rate Note and the interests of the Lenders in the
Guarantees.
(d) Use of Proceeds. Use proceeds from each Disbursement solely to
finance: (i) the manufacture, construction, fabrication, financing and
purchase of the Vessel; (ii) Construction Period Interest; and (iii) the
Guarantee Fees. Use the proceeds from the issuance of any Fixed Rate Bonds
to repay amounts owed under the Floating Rate Note or to finance: (i) the
manufacture, construction, fabrication, financing and purchase of the
Vessel; (ii) Construction Period Interest; and (iii) the Guarantee Fees.
(e) Successors. Require that any successor to all or substantially all
of its business as a result of any merger or consolidation with any other
entity, dissolution or termination of legal existence, sale, lease,
transfer or other disposal of any substantial part of its properties or any
of its properties essential to the conduct of its business or operations,
as now or hereafter conducted, any change in control, any agreement to do
any of, or any combination of, the foregoing, to assume all of the
Shipowner's indebtedness, liabilities and obligations under this Agreement,
the Indenture and the Floating Rate Note.
SECTION 9. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT
9.01 Cancellation. The Shipowner may cancel at any time all or any part
of the Available Amount of the Credit Facility, provided that (i) thirty (30)
days' prior irrevocable written notice is given to the Agents, the Indenture
Trustee, and the Secretary and (ii) the Shipowner shall have paid to the Lenders
any commitment fees accrued and unpaid under Section 6.01 and all other amounts
due and payable under this Agreement and the Floating Rate Note as of the
proposed date of cancellation. In the absence of an Indenture Default, the
Lenders may not for any reason cancel at any time any part of the Available
Amount of the Credit Facility, and in the event of an Indenture Default, the
Lenders shall be governed by the provisions of Section 9.02 hereof with respect
to the Available Amount.
9.02 Events of Default. Upon the occurrence of any of the following
events or conditions (each, an "Event of Default"):
(a) any failure by the Shipowner to pay when and as due any amount
owing under this Agreement, but which is not guaranteed by the Secretary;
or
(b) any failure by the Shipowner to comply with its obligations under
Section 8.02(a) or 8.02(d); or any failure by the Shipowner to perform or
comply with any of its agreements set forth in this Agreement (exclusive of
any events specified as an Event of Default in any other subsection of this
Section 9.02 , which failure, if capable of being cured, remains uncured
for a period of thirty (30) days after written notice thereof has been
given to the Shipowner by the Facility Agent; or
19
(c) the Shipowner shall be unable to pay its debts when and as they
fall due or shall admit in writing its inability to pay its debts as they
fall due or shall become insolvent; or the Shipowner shall apply for or
consent to the appointment of any liquidator, receiver, trustee or
administrator for all or a substantial part of its business, properties,
assets or revenues; or a liquidator, receiver, trustee or administrator
shall be appointed for the Shipowner and such appointment shall continue
undismissed, undischarged or unstayed for a period of thirty (30) days, or
the Shipowner shall institute (by petition, application, answer, consent or
otherwise) any bankruptcy, arrangement, readjustment of debt, dissolution,
liquidation or similar executory or judicial proceeding; or a bankruptcy,
arrangement, readjustment of debt, dissolution, liquidation or similar
executory or judicial proceeding shall be instituted against the Shipowner
and shall remain undismissed, undischarged or unstayed for a period of
thirty (30) days; or
(d) an Indenture Default has occurred;
then, and in any such event, and at any time thereafter, if such event is
continuing, and if there is no Indenture Default (or if there is an
Indenture Default, only after the Secretary has received all payments due
under the Secretary's Note and the Mortgage), any Agent or any Lender (by
written notice to the Shipowner), shall have the right to institute any
judicial or other proceedings under this Agreement to recover all amounts
owing under this Agreement. The Lenders agree that so long as an Indenture
Default exists, all amounts received during such period from, or on behalf
of, the Shipowner shall be applied in the manner set forth in Section 7.02.
Notwithstanding an Event of Default, the Lenders may not terminate the
Available Amount of the Credit Facility without the Secretary's consent;
provided, however, that the Shipowner's use of the Available Amount of the
Credit Facility shall remain subject to the requirements of Sections 2.02,
3.01, and 5.02. Except as expressly provided above in this Section 9.02,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived. Notwithstanding any other provision of this Agreement, if
Section 9.02(c) is applicable, the Lender may file appropriate claims in
connection therewith, but shall apply any funds collected as a consequence
of said filings in accordance with the provisions of Section 7.02 of this
Agreement.
SECTION 10. GOVERNING LAW AND JURISDICTION
10.01 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.02 Submission to Jurisdiction. Each of the Shipowner and the Lenders
hereby irrevocably agrees that any legal suit, action or proceeding arising out
of or relating to this Agreement, or any of the transactions contemplated
hereby, may be instituted by the other parties hereto in the
20
Courts of the State of
New York or the Federal Courts sitting in the Borough of
Manhattan, City of
New York, State of
New York. Each of the Shipowner and the
Lenders hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may have now or hereafter to the laying of the venue or any
objection based on forum non conveniens, or based on the grounds of jurisdiction
with respect to any such legal suit, action or proceeding and irrevocably
submits generally and unconditionally to the jurisdiction of any such court in
any such suit, action or proceeding. Each of the Shipowner and the Lenders
agrees that a judgment, after exhaustion of all available appeals, in any such
action or proceeding shall be conclusive and binding upon it and may be enforced
in any other jurisdiction by suit upon such judgment, a certified copy of which
shall be conclusive evidence of the judgment. Each of the Shipowner and the
Lenders waives personal service of any summons, complaint, or other process,
which service may be made by such or any other means permitted by
New York law.
10.03 Waiver of Security Requirements. To the extent the Shipowner may,
in any action or proceeding arising out of or relating to this Agreement be
entitled under applicable law to require or claim that the Agents or the Lenders
post security for costs or take similar action, the Shipowner hereby irrevocably
waives and agrees not to claim the benefit of such entitlement.
10.04 No Limitation. Nothing in this Section 10 shall affect the right
of the Agents or any Lender to serve process in any manner permitted by law or
to commence legal proceedings or otherwise proceed against the Shipowner in any
jurisdiction; provided, however, that except as provided in Section 9.02, in the
event of an Indenture Default, the Agents and the Lenders may not proceed
against the Shipowner without the Secretary's consent unless the Secretary has
received full payment under the Secretary's Note.
SECTION 11. MISCELLANEOUS
11.01 Computations. Except for interest rates determined by the
Indenture Trustee as provided in the Indenture, each determination of an
interest rate by the Administrative Agent or the Facility Agent, or any other
Person pursuant to any provision of this Agreement, the Fee Letter or the
Floating Rate Note, in the absence of error, shall be conclusive and binding on
the Shipowner. Each determination of a fee or other amounts (excluding interest
rates) by the Facility Agent, any Lender, or any other Person pursuant to any
provision of this Agreement, the Fee Letter or the Floating Rate Note, in the
absence of manifest error, shall be conclusive and binding on the Shipowner. All
computations of interest and fees hereunder and under the Floating Rate Note
shall be made on the basis of a year of three hundred sixty (360) days and
actual days elapsed. The Secretary and Indenture Trustee may request supporting
documentation for the information provided by the Facility Agent or the
Administrative Agent to the Indenture Trustee.
11.02 Notices. Except as otherwise specified, all notices given
hereunder shall be in writing, and shall be given by mail, facsimile, telex, air
or other courier service, or personal delivery and shall be deemed to be given
for
21
the purposes of this Agreement on the day that such notice is received by the
intended recipient thereof. Unless otherwise specified in a notice delivered in
accordance with this Section 11.02, all notices shall be delivered to the
parties hereto and to the Indenture Trustee and the Secretary at their
respective addresses indicated below:
To the Facility Agent and the Lenders:
Address: Citibank International plc, as Facility Agent
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Loans Agency
Telephone: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/4242
Facsimile: 011 44 20 7500 4482/4484
With a copy to:
Citibank, N.A., as the Alternate Lender
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Trade Finance
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to the Administrative Agent
To the Administrative Agent
Address: Citicorp North America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Trade Finance
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To the Shipowner
Address: CAL DIVE I - TITLE XI, INC.
Suite 400
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Senior Vice President, General Counsel & Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
22
To the Secretary
Address: SECRETARY OF TRANSPORTATION
c/o Maritime Administrator
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Office of Ship Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Indenture Trustee
Address: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11.03 Disposition of Indebtedness. Once the Shipowner has completely
drawn down on the Credit Facility and the Available Amount is zero, each Lender
may sell, assign, transfer, negotiate, or otherwise dispose of all or any part
of its interest in all or any part of the Shipowner's indebtedness under this
Agreement and the Floating Rate Note to any party (collectively, a "Disposition
of Indebtedness"), and any such party shall enjoy all the rights and privileges
of such Lender under this Agreement and the Floating Rate Note; provided,
however, that each Disposition of Indebtedness to any Person other than another
Lender or a domestic Affiliate of a Lender shall require the prior written
consent of the Shipowner (which consent shall not be unreasonably withheld or
delayed); provided, further, however, that each Lender may pledge or grant
participation in all or any part of its interest in all or any part of the
Shipowner's indebtedness under this Agreement and the Floating Rate Note to any
party at any time so long as such Lender's commitment to lend the Available
Amount under this Agreement is not affected thereby. The Shipowner shall, at the
request of the Facility Agent, execute and deliver to the Facility Agent or to
any party that the Facility Agent may designate, any such further instruments as
may be necessary or desirable to give full force and effect to a Disposition of
Indebtedness by the applicable Lender.
11.04 Disclaimer. Neither the Agents nor the Lenders shall be
responsible in any way for the performance of the Construction Contract or any
other Shipowner Document, and no claim against the Shipbuilder or any other
Person with respect to the performance of the Construction Contract will affect
the obligations of the Shipowner under this Agreement or the Floating Rate Note.
23
11.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent or any Lender in exercising any right, power or privilege under
this Agreement, the Floating Rate Note or the Indenture and no course of dealing
between or among the Shipowner and any Agent or any Lender shall operate as a
waiver of the rights of the Shipowner and such Lenders against each other under
this Agreement; nor shall any single or partial exercise of any right, power or
privilege hereunder or under the Floating Rate Note or the Indenture preclude
the Shipowner, the Agents, or the Lenders from exercising against each other any
other right, power or privilege hereunder. The rights and remedies expressly
provided herein are cumulative and not exclusive of any rights or remedies that
the Agents or the Lenders would otherwise have. No notice to or demand on the
Shipowner in any case shall entitle the Shipowner to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of any Agent or any Lender under this Agreement to any other or further action
in any circumstances without notice or demand. Notwithstanding any other
provision to the contrary herein, no provision in this Agreement or any other
related agreement preserves any rights in favor of the parties against the
Secretary in the event that either party fails or delays to exercise any rights,
powers, or privileges under this Agreement, the Floating Rate Note or the
Indenture or engages in any particular course of dealing.
11.06 Currency. All payments of principal, interest, fees or other
amounts due hereunder and under the Floating Rate Note shall be made in Dollars,
regardless of any law, rule, regulation or statute, whether now or hereafter in
existence or in effect in any jurisdiction, which affects or purports to affect
such obligations.
11.07 Severability. To the extent permitted by applicable law, the
illegality or unenforceability of any provision of this Agreement shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement.
11.08 Amendment or Waiver. This Agreement may not be changed,
discharged or terminated without the written consent of the parties hereto, and
no provision hereof may be waived without the written consent of the party to be
bound thereby. There may be no change, discharge, termination or claim of waiver
of the terms of this Agreement without the prior written consent of the
Secretary, who is entitled to enforce his rights under this Agreement as an
intended third party beneficiary to this Agreement. The parties hereto
acknowledge, however, that nothing in this Agreement creates in either the
Shipowner or the Lenders any right whatsoever against the Secretary.
11.09 Indemnification. Without limiting any other rights that any Agent
or any Lender may have hereunder or under applicable law, the Shipowner hereby
agrees to indemnify each of the Agents and the Lenders (each, an "Indemnified
Party") from and against any and all damages, losses, claims, liabilities and
related costs and expenses, including reasonable attorneys' fees and
disbursements (all the foregoing being collectively referred to as "Indemnified
Amounts") awarded against or incurred by such Indemnified
24
Party arising out of or as a result of this Agreement or the Floating Rate Note
excluding, however, Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Indemnified Party. In the
event of an Indenture Default, all amounts received by such Indemnified Party
pursuant to such indemnification after an Indenture Default shall be held and
paid in the manner required by Section 7.02.
11.10 Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that the Shipowner may not
assign any of its rights or obligations hereunder without the prior written
consent of the Lenders, and, to the extent set forth in paragraph 11.03 hereof,
the Secretary.
11.11 Waiver of Jury Trial. Each of the Shipowner and the Lenders
waives its respective rights to a trial by jury of any claim or cause of action
based upon or arising out of or related to this Agreement, any assignment or the
transactions contemplated hereby, in any action, proceeding or other litigation
of any type brought by any party against the other parties, whether with respect
to contract claims, tort claims, or otherwise. Each of the Shipowner and the
Lenders agrees that any such claim or cause of action shall be tried by a court
trial without a jury. Without limiting the foregoing, the parties further agree
that their respective right to a trial by jury is waived by operation of this
section as to any action, counterclaim or other proceeding which seeks, in whole
or in part, to challenge the validity or enforceability of this Agreement, any
assignment or any provision hereof or thereof. This waiver shall apply to any
subsequent amendments, renewals, supplements or modifications to this Agreement
or any assignment.
11.12 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
11.13 Shipowner Documents. Notwithstanding the provisions of this
Agreement, in any conflict between this Agreement and the provisions of the
Shipowner Documents, the Shipowner Documents shall govern the agreement between
the parties hereto, but only with respect to the subject matter thereof.
Notwithstanding the previous sentence, any provision in the Indenture (or any
other agreement the Shipowner has entered into with any other Person) purporting
to release the Shipowner of any indebtedness, liability or obligation shall not
apply to any indebtedness, liability or obligation of the Shipowner hereunder
and no termination of the Indenture (or any other agreement the Shipowner has
entered into with any other Person) shall affect the continued effectiveness of
this Agreement, which shall continue in full force and effect until the Credit
Facility has been terminated and all indebtedness, liabilities and obligations
of the Shipowner have been fully discharged and satisfied, the Floating Rate
Note have been paid, satisfied and discharged in full, and there
25
has elapsed a year and a day from the last payment received from, or on behalf,
of the Shipowner. However, this Section 11.13 shall have no affect on the
relationships established and the agreements entered into by the parties to the
Shipowner Documents (and such other agreements the Shipowner has entered into
with any other Person), in each case to which the Lenders are not parties in
their capacities as the Lenders hereunder.
11.14 Entire Agreement. This Agreement, the Fee Letter and the Floating
Rate Note contain the entire agreement among the parties hereto regarding the
Credit Facility.
11.15 No Proceedings. Each of the Shipowner, the Alternate Lender and
the Agents hereby agrees that it will not institute against, or join any other
Person in instituting against, the Primary Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or any other
proceeding under any federal or state bankruptcy or similar law, so long as any
Commercial Paper issued by the Primary Lender shall be outstanding or there
shall not have elapsed one year plus one day since the last day on which any
such Commercial Paper shall have been outstanding.
SECTION 12. ARRANGEMENTS AMONG THE AGENTS AND THE LENDERS
12.01 Appointment. Each Lender hereby appoints the Facility Agent to
act as its agent in connection herewith and in connection with the Floating Rate
Note and the Indenture and authorizes the Facility Agent to exercise such
rights, powers and discretions as are specifically delegated to the Facility
Agent by the terms hereof and thereof, together with all such rights, powers and
discretions as are reasonably incidental thereto. Without limiting the
foregoing, all notices to be delivered to, and approvals to be given by, a
Lender under the disbursement procedures described in Section 3.01 hereof shall
be delivered to and given by the Facility Agent on behalf of such Lender.
12.02 Rights of Facility Agent. The Lenders and the Facility Agent
agree that the Facility Agent may:
(i) assume that (a) any representation made by the Shipowner in
connection herewith is true; (b) no event which is or may become an Event of
Default has occurred; (c) the Shipowner is not in breach of or default under its
obligations hereunder; (d) any right, power, authority or discretion vested
herein upon the Lenders or any other person or group of persons has not been
exercised; unless it has, in its capacity as Facility Agent, notice or actual
knowledge to the contrary;
(ii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may to it seem
necessary, expedient or desirable and rely upon any advice so obtained;
(iii) rely as to any matters of fact that might reasonably be expected
to be within the knowledge of the Shipowner upon a certificate signed by or on
behalf of the Shipowner;
26
(iv) rely upon any communication or document believed by it to be
genuine;
(v) refrain from exercising any right, power or discretion vested in it
as facility agent hereunder unless and until instructed by a Lender as to
whether or not such right, power or discretion is to be exercised and, if it is
to be exercised, as to the manner in which it should be exercised; and
(vi) refrain from acting in accordance with any instructions of any
Lender to begin any legal action or proceeding arising out of or in connection
with this Agreement until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all costs, claims,
expenses (including legal fees) and liabilities which it will or may expend or
incur in complying with such instructions.
12.03 Duties. The Facility Agent shall:
(i) promptly inform each Lender of the contents of any notice or
document received by it from the Shipowner hereunder;
(ii) promptly notify each Lender of the occurrence of any Event of
Default or any default by the Shipowner in the due performance
of or compliance with its obligations under this Agreement of
which the Facility Agent has notice from any other party
hereto;
(iii) save as otherwise provided herein, act as facility agent
hereunder in accordance with any instructions given to it by
any Lender, which instructions shall be binding on all of the
Lenders; and
(iv) if so instructed by any Lender, refrain from exercising any
right, power or discretion vested in it as facility agent
hereunder.
12.04 Limitation on Obligations of Facility Agent. Notwithstanding
anything to the contrary expressed or implied herein, the Lenders and the
Facility Agent agree that the Facility Agent shall not:
(i) be bound to inquire as to:
(a) whether or not any representation made by the
Shipowner in connection herewith is true;
(b) the occurrence or otherwise of any event which is or
may become an Event of Default;
27
(c) the performance by the Shipowner of its obligations
hereunder; or
(d) any breach of or default by the Shipowner or under
its obligations hereunder;
(ii) be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account;
(iii) be bound to disclose to any other person any information relating
to the Shipowner or any of its agencies if such disclosure would or might in its
opinion constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person; or
(iv) be under any obligations other than those for which express
provision is made herein.
12.05 Indemnification by Lenders. The Alternate Lender shall, from time
to time on demand by the Facility Agent, indemnify the Facility Agent, against
any and all costs, claims, expenses (including legal fees) and liabilities
(collectively, "Liabilities") together with any tax thereon which the Facility
Agent may incur, otherwise than by reason of its own gross negligence or willful
misconduct, in acting in its capacity as facility agent hereunder (including,
without limitation, any Liabilities in anyway relating to or arising out of
certifications made with respect to either (a) the due authorization, execution
or delivery of a Floating Rate Note, or (b) laws and/or regulations of any
Governmental Authority, in each case in connection with any request by the
Facility Agent to the Indenture Trustee or the Secretary for the Secretary to
endorse its guarantee on a Floating Rate Note or for the Indenture Trustee to
authenticate a Floating Rate Note).
12.06 Limitation on Responsibility. The Facility Agent accepts no
responsibility to the Lenders for the accuracy and/or completeness of any
information supplied by the Shipowner in connection herewith or for the
legality, validity, effectiveness, adequacy or enforceability of this Agreement,
and the Facility Agent shall be under no liability to the Lenders as a result of
taking or omitting to take any action in relation to this Agreement, save in the
case of its own negligence or willful misconduct.
12.07 No Claims on Employees of Facility Agent. Each Lender agrees that
it will not assert or seek to assert against any director, officer or employee
of the Facility Agent any claim that it might have against it in respect of the
matters referred to in Clause 12.06.
12.08 Banking Business. The Lenders agree that the Facility Agent may
accept deposits from, lend money to and generally engage in any kind of banking
or other business with the Shipowner.
28
12.09 Resignation or Termination of Facility Agent.
(i) The Facility Agent may (after consultation with the Shipowner and
the Lenders) resign its appointment hereunder at any time without assigning any
reason therefor by giving not less than thirty (30) days' prior written notice
to that effect to each of the other parties hereto; provided, that no such
resignation shall be effective until a successor for the Facility Agent is
appointed in accordance with the succeeding provisions of this Section 12;
(ii) The Lenders and the Shipowner may jointly seek the termination of
the appointment of the Facility Agent hereunder at any time by giving not less
than thirty (30) days prior written notice to that effect to the Facility Agent;
provided that no such termination shall be effective until a successor for the
Facility Agent is appointed in accordance with the succeeding provisions of this
Section 12; provided, further that any such notice of termination must be signed
by all of the Lenders and the Shipowner; and
(iii) For the avoidance of doubt, the parties hereto agree that the
provisions of this Section 12.09 shall at no time apply to or restrict the
ability of the Administrative Agent to resign its position of Administrative
Agent.
12.10 Successor to Facility Agent. If the Facility Agent gives notice
of its resignation pursuant to Section 12.09(i) or receives notice of
termination pursuant to Section 12.09(ii), then any reputable and experienced
bank or other financial institution may be appointed as a successor to the
Facility Agent by the Lenders with the consent of the Secretary and Shipowner
(which consent of the Shipowner shall not be unreasonably withheld or delayed)
during the period of such notice but, if no such successor is so appointed, the
Facility Agent may appoint such a successor itself with the consent of the
Secretary and Shipowner (which consent of the Shipowner shall not be
unreasonably withheld or delayed).
12.11 Discharge of Obligations. If a successor to the Facility Agent is
appointed under the provisions of Section 12.10, then (i) the retiring Facility
Agent shall be discharged from any further obligation hereunder but shall remain
entitled to the benefits of the provisions of this Section 12 and (ii) its
successor and each of the other parties hereto shall have the same rights and
obligations amongst themselves as they would have had if such successor had been
a party hereto.
12.12 Responsibilities of Lenders. It is understood and agreed by each
Lender that it is, and will continue to be, solely responsible for making its
own independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of the Shipowner, the
Secretary and the United States of America and, accordingly, each Lender
warrants to the Facility Agent that it has not relied and will not hereafter
rely on the Facility Agent:
(i) to check or inquire on its behalf into the adequacy, accuracy
or completeness of any information provided by
29
the Shipowner in connection with this Agreement or the
transaction herein contemplated (whether or not such
information has been or is hereafter circulated to such Lender
by the Facility Agent); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of the Shipowner.
12.13 Agency Division. In acting as Facility Agent for the Lenders, the
Facility Agent's agency division shall be treated as a separate entity from any
other of its divisions or departments and, notwithstanding the foregoing
provisions of this Section 12, in the event that the Facility Agent should act
for the Shipowner in any capacity in relation to any other matter, any
information given by the Shipowner to the Facility Agent in such other capacity
may be treated as confidential by the Facility Agent.
12.14 Administrative Agent. Each party hereto (other than the
Administrative Agent) acknowledges that the Administrative Agent is a party
hereto only in its capacity as administrative agent of the Primary Lender and
the Primary Lender's commercial paper holders.
12.15 Facility Agent Only Agent for the Lenders. The Facility Agent is
not authorized to, nor shall it, act as the agent for the Secretary, the
Indenture Trustee, the Shipowner or any of their successors in interest or
assigns in any of the capacities provided for herein.
30
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the date first above written.
CAL DIVE I - TITLE XI, INC., as the GOVCO INCORPORATED, as the Primary
Shipowner Lender, by Citicorp North America,
Inc., its attorney-in-fact.
By: By:
--------------------------------- --------------------------------
(Signature) (Signature)
Name: Name: P.A. Botticelli
------------------------------- ------------------------------
(Print) (Print)
Title: Title: Vice President
------------------------------ -----------------------------
(Print)
CITIBANK INTERNATIONAL plc, CITIBANK, N.A., as the Alternate
as Facility Agent Lender
By: By:
--------------------------------- --------------------------------
(Signature) (Signature)
Name: P. A. Botticelli Name: Ae ▇▇▇▇▇ ▇▇▇▇▇
------------------------------- ------------------------------
(Print) (Print)
Title: Vice President Title: Vice President
------------------------------ -----------------------------
(Print) (Print)
CITICORP NORTH AMERICA, INC., as the Administrative Agent
By:
---------------------------------
(Signature)
Name: P. A. Botticelli
-------------------------------
(Print)
Title: Vice President
-------------------------------
(Print)
31
ANNEX A
CERTIFICATE AUTHORIZING DISBURSEMENT
Date
-------------------
CITIBANK INTERNATIONAL plc, as Facility Agent
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
GOVCO INCORPORATED, as Primary Lender
CITIBANK, N.A., as Alternate Lender
New York,
New York
Subject:
Credit Agreement dated August __, 2000
CAL DIVE I - TITLE XI, INC.
Certificate Authorizing Disbursement No. ____
Ladies and Gentlemen:
In accordance with the terms and conditions of the Security
Agreement between CAL DIVE I - TITLE XI, INC., a Texas corporation (the
"Shipowner" or "Borrower") and the Secretary and with respect to the Shipowner's
Request for Disbursement pursuant to the
Credit Agreement ("Agreement"), dated
as of August __ 2000, by and among, the Shipowner, GOVCO INCORPORATED, a
Delaware corporation (the "Primary Lender"), CITIBANK, N.A., a national banking
association (the "Alternate Lender" and, together with the Primary Lender, the
"Lenders"), CITIBANK INTERNATIONAL PLC, a bank organized and existing under the
laws of England (the "Facility Agent"), and CITICORP NORTH AMERICA, INC., a
Delaware corporation (the "Administrative Agent"), we hereby authorize the
Primary Lender or the Alternate Lender, as determined in accordance with Section
2.01 of the Agreement, to make a Disbursement under the Credit Facility in the
amount of U.S. $________ on or after ___________ , 200_, by paying to such
Lender from the proceeds of the Disbursement the Construction Period Interest
payable to such Lender in the amount of U.S. $___________________, and then
paying the balance of the proceeds of the Disbursement to the account of
[identify the Shipowner's, Shipyard's or Vendor's account as it is carried on
the books of the payee bank] at [complete name and address of the payee bank].
The defined terms in this Certificate shall have the
respective meanings specified in the
Credit Agreement.
(Seal) UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
ATTEST: By: Maritime Administration
By:
-------------------------- --------------------------------
Assistant Secretary Secretary
Maritime Administration Maritime Administration
ANNEX B
August __, 2000
To: Citicorp North America, Inc.
as Agent under the
Credit Agreement referred to below
Re: Cal Dive I - Title XI, Inc.
Ladies and Gentlemen:
Reference is hereby made to that certain
Credit Agreement (the "
Credit
Agreement") dated as of even date herewith by and among Cal Dive I - Title XI,
Inc. (the "Shipowner"), GOVCO Incorporated (the "Primary Lender"), Citibank,
N.A. (the "Alternate Lender"), Citibank International plc (the "Facility Agent")
and Citicorp North America, Inc., in its capacity as Agent (the "Agent").
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the
Credit Agreement.
The
Credit Agreement provides, among other things, for the making of
certain Disbursements by the Primary Lender to be evidenced by a Floating Rate
Note which has been or will be guaranteed by the United States of America
pursuant to Title ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended. A condition
to such Disbursements is the undersigned's execution of this letter agreement.
In consideration of the foregoing, the undersigned hereby agrees that it will
not institute against, or join any other person in instituting against, the
Primary Lender, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or any other proceeding under any federal or state
bankruptcy or similar law as a result of any claim it may have against the
Primary Lender arising under or in connection with the transactions contemplated
by the Credit Agreement, so long as any commercial paper issued by the Primary
Lender shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any such commercial paper shall have been
outstanding. IT IS EXPRESSLY UNDERSTOOD THAT THIS LETTER DOES NOT BIND ANY
AGENCY OF THE UNITED STATES OF AMERICA OTHER THAN THE DEPARTMENT OF
TRANSPORTATION, ACTING THROUGH THE MARITIME ADMINISTRATION, AND THAT THIS LETTER
DOES NOT BIND THE UNDERSIGNED WITH RESPECT TO ANY CLAIMS IT MAY HAVE AGAINST THE
PRIMARY LENDER AS A RESULT OF ANY OTHER TRANSACTION WE HAVE ENTERED INTO WITH
THE PRIMARY LENDER WHICH IS UNRELATED TO THE CREDIT AGREEMENT EXCEPT TO THE
EXTENT THAT WE HAVE ENTERED INTO A SIMILAR AGREEMENT WITH RESPECT TO SUCH OTHER
TRANSACTION.
This letter agreement has been executed and delivered by the
undersigned in connection with the issuance of the Floating Rate Note for the
benefit of the Primary Lender and the Agent on behalf of the Primary Lender and
no other Person shall be entitled to any rights hereunder.
UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
(SEAL OF THE DEPARTMENT
OF TRANSPORTATION)
By:
------------------------------------
Maritime Administrator
EXHIBIT 1 TO
CREDIT AGREEMENT
Schedule of Definitions to Credit Agreement
Dated as of August __, 2000
"Accelerated Repayment" shall have the meaning set forth in Section
4.02(b) of the Credit Agreement.
"Act" means the Merchant Marine Act, 1936, as amended and in effect on
the Closing Date.
"Administrative Agent" means CITICORP NORTH AMERICA, INC., a Delaware
corporation, as administrative agent for the Primary Lender and the commercial
paper holders of the Primary Lender (and their respective successors and
assigns), and its permitted successors and assigns.
"Affiliate" or "Affiliated" means any Person directly or indirectly
controlling, controlled by, or under common control with, another Person.
"Agent" means each of the Administrative Agent and the Facility Agent,
individually, and "Agents" means the Administrative Agent and the Facility
Agent, collectively.
"Alternate Lender" shall have the meaning set forth in the preamble to
the Credit Agreement.
"Amortization Schedule" means the schedule set forth as Attachment 1 to
the Indenture, as the same may be revised as provided in the Special Provisions
of the Indenture.
"Applicable Interest Rate" shall mean
(i) with respect to any Disbursement or portion thereof that
is funded by the Primary Lender through its issuance of commercial paper notes
and so long as the Primary Lender is the holder of the indebtedness related to
such funded portion, a rate (the "CP Rate") equal to the sum of (A) the Primary
Lender's weighted average cost (defined below) related to the issuance of
commercial paper notes and other short-term borrowings or the sale of
participation interests (collectively, "Commercial Paper"), which in each case
have been allocated by the
Primary Lender to the Credit Facility, which rate includes related issuance
costs incurred by the Primary Lender, plus (B) two-tenths of one percent (.20%)
as calculated by the Administrative Agent for each Interest Period and specified
in a notice sent by the Administrative Agent to the Facility Agent and by the
Facility Agent to the Shipowner and the Indenture Trustee at least five (5)
Business Days prior to each Interest Payment Date on which the interest so
calculated is payable (For purposes of the foregoing, the Primary Lender's
"weighted average cost" of Commercial Paper shall consist of (i) the actual
interest rate or discount paid to purchasers of Commercial Paper, (ii) the costs
associated with the issuance of the Commercial Paper and (iii) other borrowings
the Primary Lender may incur, including the amount to fund small or odd dollar
amounts that are not easily accommodated in the commercial paper market); and
(ii) with respect to any Disbursement or portion thereof funded by the
Alternate Lender or to the extent that a Disbursement held by the Primary Lender
is assigned to the Alternate Lender or to any other assignee, then, from and
after the applicable Disbursement Date or the effective date of such assignment,
as the case may be, a rate per annum equal to LIBOR plus fifteen one hundredths
of one percent (0.15%) per annum; provided, however, that, if the Alternate
Lender shall have determined, prior to the commencement of any Interest Period
that: (A) Dollar deposits of sufficient amount and maturity for funding a
Disbursement are not available to such Lender in the London interbank market in
the ordinary course of business; or (B) by reason of circumstances affecting the
relevant market, adequate and fair means do not exist for ascertaining the rate
of interest to be applicable to a Disbursement; or (C) the relevant rate of
interest referred to in the definition of LIBOR which is to be used to determine
the rate of interest for a Disbursement does not cover the funding cost to the
Lender of making or maintaining the Disbursement, then the Lender shall so
notify the Indenture Trustee, who shall give notice to the Shipowner of such
condition and interest shall, effective as of the date of such notice and so
long as such condition shall exist, accrue during each applicable Interest
Period at the Base Rate; provided, further, however that if, in the Lender's
reasonable judgment, it becomes unlawful at any time for such Lender to make or
maintain Disbursements based upon LIBOR, the Lender shall so notify the
Indenture Trustee, who shall give notice to the Shipowner of such determination
and, effective as of the date of such notice and so long as such condition shall
exist, interest shall thereafter accrue during each applicable Interest Period
at the Base Rate.
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"Authorization Agreement" means the Authorization Agreement, Contract
No. MA-13598, dated the Closing Date, between the Secretary and the Indenture
Trustee, whereby the Secretary authorizes the Guarantee of the United States of
America to be endorsed on the Floating Rate Note, as the same is originally
executed, or as modified, amended or supplemented in accordance with the
applicable provisions thereof.
"Available Amount" shall have the meaning set forth in Section 2.01 of
the Credit Agreement.
"Base Rate" means, for any Interest Period or any other period, a
fluctuating interest rate per annum as shall be in effect from time to time
which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank, N.A.
in
New York,
New York, from time to time, as Citibank, N.A.'s base
rate; or
(b) one-half of one percent (0.50%) per annum above the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank, N.A. on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York, or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank, N.A. from three New York certificate of deposit
dealers of recognized standing selected by Citibank, N.A., in either
case adjusted to the nearest one-fourth of one percent (0.25%) or, if
there is no nearest one-fourth of one percent, to the next higher
one-fourth of one percent.
"Business Day" shall mean any day on which dealings in Dollar deposits
are carried on in the London interbank market and on which commercial banks in
London, Texas and New York City are open for domestic and foreign exchange
business.
"Certificate Authorizing Disbursement" shall mean, with respect to a
Disbursement, the United States Certificate Authorizing Disbursement
substantially in the form set forth in Annex A to the Credit Agreement.
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"Closing Date" means August __, 2000.
"Commercial Paper" shall have the meaning set forth in clause (a)(i)of
the definition of Applicable Interest Rate herein.
"Construction Contract" means that certain Contract for
Semi-Submersible, Multi-Service Vessel (Amfels Hull No. P182), effective July
16, 1999, by and between Cal Dive International, Inc. and the Shipyard, as the
same may be amended, modified or supplemented and assigned to the Shipowner in
accordance with the applicable provisions thereof.
"Construction Period" shall mean the period from the date hereof to the
Delivery Date.
"Construction Period Interest" shall mean all interest that accrues on
the Outstanding Principal during the Construction Period.
"CP Rate" shall have the meaning set forth in clause (a)(i) of the
definition of Applicable Interest Rate herein.
"Credit Agreement" or "Agreement" shall mean the Credit Agreement,
dated as of the Closing Date, among the Shipowner, the Lenders, and the Agents,
including any Exhibit, Annex, or other attachment thereto, as the same may be
amended, modified or supplemented in accordance with the applicable provisions
thereof.
"Credit Facility" shall have the meaning set forth in Whereas Clause
(A) of the Credit Agreement.
"Credit Facility Amount" shall have the meaning set forth in Section
2.01 of the Credit Agreement.
"Delivery Date" means the date on which the Vessel is delivered to and
accepted by the Shipowner.
"Depository Agreement" means the Depository Agreement, Contract No.
MA-13602, dated as of the Closing Date, between the Shipowner, UNITED STATES
TRUST COMPANY, as Depository, and the Secretary, as the same is originally
executed, or amended, modified or supplemented in accordance with the applicable
provisions thereof.
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"Disbursements" shall have the meaning set forth in Section 2.03 of the
Credit Agreement.
"Disbursement Date" shall mean, in relation to any Disbursement, the
Business Day on which the Lender shall make such Disbursement.
"Disposition of Indebtedness" shall have the meaning set forth in
Section 11.03 of the Credit Agreement.
"Dollars", "U.S. Dollars", "U.S.D.", "U.S. $" or "$" shall mean the
lawful currency of the United States of America.
"Eurodollar Reserve Percentage" shall mean with respect to any Interest
Period or Post Maturity Period the reserve percentage applicable to Citibank,
N.A. during such period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) (or if more than
one such percentage shall be so applicable, the daily average of such
percentages for those days in such period during which such reserve shall be so
applicable) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or marginal reserve requirement) for
Citibank, N.A. in respect of liabilities or assets consisting of or including
Eurocurrency Liabilities as that term is used in Regulation D of the Board of
Governors of the Federal Reserve System as in effect from time to time.
"Event of Default" shall have the meaning set forth in Section 9.02 of
the Credit Agreement.
"Facility Agent" means CITIBANK INTERNATIONAL plc, a bank organized and
existing under the laws of England, as facility agent for both the Primary
Lender and the Alternate Lender (and their respective successors and assigns),
and its permitted successors and assigns.
"Fee Letter" shall have the meaning set forth in Section 6.01 of the
Credit Agreement.
"Final Disbursement Date" shall have the meaning set forth in Section
2.02 of the Credit Agreement.
"Fixed Rate Bond" shall mean an Obligation in the form of a Serial Bond
substantially in the form of Exhibit 3 to the Indenture, and an Obligation in
the form of a Sinking Fund Bond substantially in the form of Exhibit 4 to the
Indenture, each as appropriately completed.
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"Floating Rate Note" shall mean the Note substantially identical to the
form of Exhibit 2 to the Indenture, appropriately completed.
"Governmental Authority" shall mean the government of any country, any
agency, department or other administrative authority or instrumentality thereof,
and any local or other governmental authority within any such country.
"Guarantee" or "Guarantees" means the guarantee of an Obligation by the
United States of America pursuant to Title XI of the Act, as provided in the
Authorization Agreement.
"Guarantee Commitment" means the Commitment to Guarantee Obligations,
▇▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇▇, dated as of the Closing Date, executed by the Secretary
and accepted by the Shipowner with respect to the Guarantees, as originally
executed or as modified, amended or supplemented in accordance with the
applicable provisions thereof.
"Guarantee Fees" shall mean the amounts described in the Guarantee
Commitment payable in consideration for the commitment therein described and
payable as provided in such Guarantee Commitment.
"Holder" means each holder of an Obligation.
"Indemnified Amounts" shall have the meaning set forth in Section 11.09
of the Credit Agreement.
"Indemnified Party" shall have the meaning set forth in Section 11.09
of the Credit Agreement.
"Indenture" means the Trust Indenture dated as of the Closing Date,
between the Shipowner and the Indenture Trustee, as the same is originally
executed, or as modified, amended or supplemented in accordance with the
applicable provisions thereof.
"Indenture Default" has the meaning specified in Article VI of Exhibit
1 to the Indenture.
"Indenture Trustee" means Wilmington Trust Company, a Delaware banking
corporation, and any successor trustee permitted under the Indenture.
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"Interest Payment Date" means, with respect to the Floating Rate Note,
the date when any installment of interest on such Note is due and payable, which
are January 28 and July 28 of each year, beginning on January 28, 2001, and the
date of any prepayment of the Floating Rate Note.
"Interest Period" shall mean, with respect to any Disbursement, (i) the
period commencing on the Disbursement Date and extending up to, but not
including, the next Interest Payment Date; and (ii) thereafter the period
commencing on each Interest Payment Date and extending up to, but not including,
the next Interest Payment Date.
"Lender" shall have the meaning set forth in the preamble to the
Credit Agreement.
"Lenders" means collectively the Primary Lender and the Alternate
Lender.
"Liabilities" shall have the meaning set forth in Section 12.05 of the
Credit Agreement.
"LIBOR" means, in relation to any Interest Period, an interest rate per
annum equal to (i) the rate of interest per annum (rounded upward, if necessary,
to the nearest 1/16 of 1%) quoted by the principal London office of Citibank, N.
A., at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for the offering to leading banks in the
London interbank market of U.S. Dollar deposits for a period and in an amount
comparable to such Interest Period and the principal amount upon which interest
is to be paid during such Interest Period; divided by (ii) one hundred percent
(100%) minus the Eurodollar Reserve Percentage, as specified by the Facility
Agent in a written notice to the Shipowner, the Indenture Trustee and the
Secretary given not later than one Business Day prior to such Interest Period
(or, if such Interest Period commences as a result of an assignment from the
Primary Lender to the Alternate Lender, given not later than the second Business
Day of such Interest Period).
"Lien" shall have the meaning set forth in Section 8.01(c) of the
Credit Agreement.
"Liquidation Period" shall have the meaning set forth in Section
4.03(a) of the Credit Agreement.
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"Maturity" when used with respect to any Obligation, means the date on
which the principal of, or interest on, such Obligation becomes due and payable
as therein provided, whether on a Payment Date, at the Stated Maturity or by
prepayment, repayment, redemption or declaration of acceleration or otherwise.
"Mortgage" means the first preferred ship mortgage on the Vessel,
Contract No. MA-13600, between the Shipowner and the Secretary, as originally
executed or as modified, amended or supplemented in accordance with the
applicable provisions thereof.
"Note" shall mean the Floating Rate Note.
"Obligation" or "Obligations" shall mean the Floating Rate Note and the
Fixed Rate Bond(s) of the Shipowner bearing a Guarantee and authenticated and
delivered pursuant to the Indenture and the Authorization Agreement.
"Other Taxes" shall have the meaning set forth in Section 6.02(a) of
the Credit Agreement.
"Outstanding Principal" shall have the meaning set forth in Section
2.01 of the Credit Agreement.
"Payment Date" shall mean January 28 and July 28 of each year,
beginning on the earlier of the Payment Date next succeeding the Delivery Date
of the Vessel or January 28, 2002.
"Payment Default" has the meaning specified in Section 6.01(a) of
Exhibit 1 to the Indenture.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Post Maturity Interest Rate" shall have the meaning set forth in
Section 4.02(b) of the Credit Agreement.
"Post Maturity Period" shall have the meaning set forth in Section
4.02(b) of the Credit Agreement.
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"Primary Lender" shall have the meaning set forth in the preamble to
the Credit Agreement.
"Quotation Date" shall have the meaning set forth in Section 4.02(b) of
the Credit Agreement.
"Redemption" means with respect to the redemption of the Floating Rate
Note, the repayment or prepayment of the Floating Rate Note as applicable.
"Redemption Date" means, with respect to the Floating Rate Note, a date
fixed for the prepayment, repayment or redemption of such Note by or pursuant to
Section 4 of the Credit Agreement, Article Fourth of the Indenture, or Article
III of Exhibit 1 to the Indenture.
"Redemption Price" means, with respect to the Floating Rate Note, the
price at which the Floating Rate Note is to be prepaid, repaid, or redeemed
pursuant to Section 4 of the Credit Agreement, Article Fourth of the Indenture,
or Article III of Exhibit 1 to the Indenture.
"Secretary" means the Secretary of Transportation or any official or
official body from time to time duly authorized to perform the duties and
functions of the Secretary of Transportation under Title XI of the Act
(including the Maritime Administrator, the Acting Maritime Administrator, and to
the extent so authorized, the Deputy Maritime Administrator and other officials
of the Maritime Administration).
"Secretary's Note" means a promissory note or promissory notes issued
and delivered by the Shipowner to the Secretary described in Article Third of
the Special Provisions of the Security Agreement and shall also mean any
promissory note issued in substitution for and replacement thereof pursuant to
the Security Agreement.
"Security Agreement" shall mean that certain security agreement,
Contract No. MA-13599, dated as of the Closing Date, with respect to the Vessel,
executed by the Shipowner and the Secretary relating to the security in respect
to the Guarantees, as originally executed or as modified, amended or
supplemented in accordance with the applicable provisions thereof.
"Shipowner" means CAL DIVE I - TITLE XI, INC., a Texas corporation, and
for purposes of the Indenture and the Floating Rate Note, subject to the
provisions of Sections 6.09, 8.01 and 8.02 of Exhibit 1
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to the Indenture, shall also include its successors and assigns; provided,
however, that for purposes of the Credit Agreement, the term Shipowner shall
also include the Shipowner's permitted successors and assigns under the Credit
Agreement.
"Shipowner's Documents" means the Security Agreement, the Mortgage, the
Title XI Reserve Fund and Financial Agreement, the Depository Agreement, and the
Secretary's Note.
"Shipowner Financial Statements" shall have the meaning set forth in
Section 8.01(h) of the Credit Agreement.
"Shipyard" or "Shipbuilder" means AMFELS, INC., a Texas corporation.
"Stated Maturity," when used with respect to the Floating Rate Note,
means the date determinable as set forth in such Note as the final date on which
the principal of such Note is due and payable, which shall include, without
limitation, each of the Payment Dates.
"Taxes" shall have the meaning set forth in Section 6.02(a) of the
Credit Agreement.
"Title XI Reserve Fund and Financial Agreement" means that certain
Title XI Reserve Fund and Financial Agreement, Contract No. MA-13601, dated as
of the Closing Date, executed by the Shipowner and the Secretary, as amended,
modified or supplemented in accordance with the applicable provisions thereof.
"Trigger Event" has the meaning set forth in Section 2.05 of the Credit
Agreement.
"United States" means the United States of America.
"Unpaid Amount" shall have the meaning set forth in Section 4.02(b) of
the Credit Agreement.
"Vessel" means the Shipowner's ultra-deepwater, semi submersible,
multi-service vessel denominated Q4000 and constructed by AMFELS, INC. in
accordance with the Construction Contract, including all work and material
heretofore or hereafter performed upon or installed in or placed on board such
vessel, together with related appurtenances, additions, improvements, and
replacements.
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DOCUMENT 2
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1, dated as of January 25, 2002 (this "Amendment No.
1"), to that certain Credit Agreement, dated as of August 16, 2000 (the "Credit
Agreement"), is made by and among CAL DIVE I-TITLE XI, INC., a Texas corporation
(the "Shipowner"), GOVCO INCORPORATED, a Delaware corporation (the "Primary
Lender"), CITIBANK, N.A., a national banking association (the "Alternate
Lender"), CITIBANK INTERNATIONAL PLC, a bank organized and existing under the
laws of England, as facility agent for both the Primary Lender and the Alternate
Lender (and their respective successors and assigns) with respect to the
Floating Rate Note, and its permitted successors and assigns (in such capacity,
the "Facility Agent"), and CITICORP NORTH AMERICA, INC., a Delaware corporation,
as administrative agent for the Primary Lender and the commercial paper holders
of the Primary Lender (and their respective successors and assigns) (in such
capacity, together with its permitted successors and assigns, the
"Administrative Agent," and together with the Facility Agent, the "Agents").
WHEREAS, pursuant to Title ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, the
Secretary, pursuant to the Guarantee Commitment, determined that the aggregate
of the Actual Cost of the Q4000 vessel (the "Vessel") was $158,260,932 as of the
August 16, 2000 Closing Date, and agreed to guarantee Obligations in an amount
which will not exceed 87-1/2% of Actual Cost, as determined pursuant to the
Security Agreement and as reflected in Table A thereto, as the same may be
redetermined from time to time;
WHEREAS, on July 31, 2001, the Shipowner and AMFELS, Inc. (the
"Shipyard") entered into Amendment No. 2 to the Construction Contract (the
"Amendment No. 2") for the Vessel, providing for additional work to be performed
on the Vessel pursuant to change orders, and a revised Delivery Date for the
Vessel, which Amendment No. 2 was approved by the Secretary;
WHEREAS, pursuant to Amendment No.1 to Security Agreement, dated the
date hereof, the Secretary has agreed to a redetermination of the Actual Cost
relating to such additional work on the Vessel, for a total revised Actual Cost
of $183,065,667. The Shipowner has entered into Supplement No. 1 to Trust
Indenture, dated the date hereof, providing for the issuance of Obligations up
to the aggregate principal amount of $160,182,000, and the Secretary has agreed
to the revisions to the Indenture reflecting the revised Delivery Date and
certain other technical amendments; and
WHEREAS, the Parties wish to amend the Credit Agreement pursuant to
which the Lenders will agree inter alia to revise the Available Amount
thereunder to $160,182,000, and to change the Final Disbursement Date, Interest
Payment Dates, Payment Dates and Stated Maturity of the Floating Rate Note.
NOW THEREFORE, in consideration of the mutual rights and obligations
set forth herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1.01. (a) Exhibit 1 to the Credit Agreement is hereby amended
by amending the following definitions:
"Interest Payment Date" means, with respect to the Floating
Rate Note, the date or dates when any installment of interest
on such Note is due and payable, which are January 28 and July
28 of each year, beginning on January 28, 2001, and ending on
July 28, 2001, and each February 1 and August 1 thereafter,
beginning on February 1, 2002, and the date of any prepayment
of the Floating Rate Note.
"Payment Date" shall mean February 1 and August 1 of each
year, beginning on the earlier of the Payment Date next
succeeding the Delivery Date of the Vessel, or February 1,
2003.
"Floating Rate Note" shall mean the First Amended and Restated
Floating Rate Note substantially identical to the form of
Exhibit A to Supplement No. 1 to Trust Indenture,
appropriately completed.
(b) Exhibit 1 to the Credit Agreement is hereby further amended by
adding thereto the following definitions:
"Amendment No. 1 to Credit Agreement" means the Amendment No.
1 to Credit Agreement, dated as of January 25, 2002, among the
Shipowner, the Lenders and the Agents.
SECTION 1.02. Whereas Clause (A) and Section 2.01 of the Credit
Agreement are hereby amended by changing the Credit Facility Amount from
$138,478,000 to $160,182,000.
SECTION 1.03. The definition of "Final Disbursement Date" appearing in
Section 2.02 of the Credit Agreement is hereby amended by changing the date
"January 28, 2002" to "February 1, 2003."
SECTION 1.04. Sections 2.04 and 4.03(d) of the Credit Agreement are
hereby amended by deleting the amount of "$50,000,000" appearing in each such
Section, and by inserting in lieu thereof the amount "$20,000,000." Section 2.04
of the Credit Agreement is hereby further amended by changing the date "January
28, 2006" to "February 1, 2007."
SECTION 1.05. Section 2.05(a) of the Credit Agreement is hereby amended
by deleting the date "January 28, 2027" appearing in clause (i) thereof and by
inserting in lieu thereof the date "August 1, 2027."
SECTION 1.06. Section 4.01 of the Credit Agreement is hereby deleted in
its entirety and the following is substituted therefor:
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"4.01 Principal Repayment. The Shipowner shall repay the
Outstanding Principal of the Floating Rate Note as follows:
(i) In installments in the principal amounts set
forth in the First Revised Amortization Schedule, Exhibit B to
Supplement No. 1 to Trust Indenture, as the same may be
revised in accordance with the Indenture, adopted in
accordance with its terms, on each Payment Date commencing
with the Payment Date occurring on the earlier of the Payment
Date next succeeding the Delivery Date of the Vessel, or
February 1, 2003, and continuing until the Payment Date before
the earlier of (x) the Payment Date next preceding four (4)
years from the Delivery Date, or (y) February 1, 2007; and
(ii) The full amount of remaining Outstanding
Principal, on the earliest of (x) the Payment Date next
preceding four (4) years from the Delivery Date, (y) February
1, 2007, or (x) the date upon which the Trigger Event shall
occur."
SECTION 1.07. The second sentence of Section 4.05 of the Credit
Agreement is revised to read as follows:
"The Floating Rate Note shall (ii) be in the form of Exhibit A
to Supplement No. 1 to the Indenture, (ii) bear the
Secretary's Guarantee, and (iii) be valid and enforceable as
to its principal amount at any time only to the extent of the
aggregate amounts then disbursed and outstanding thereunder,
and, as to interest, only to the extent of the interest
accrued thereon at the rate guaranteed by the Secretary, with
any interest in excess thereof being evidenced by this
Agreement."
All capitalized terms used herein and not defined shall have the
meanings set forth in Exhibit 1 to the Credit Agreement.
Except as amended, the provisions of the Credit Agreement shall apply
to and govern this Amendment No. 1.
This Amendment No. 1 may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, this Amendment No. 1 to Credit Agreement has been
duly executed and delivered by the Parties hereto as of the day and year first
above written.
CAL DIVE I-TITLE XI, INC., GOVCO INCORPORATED,
As the Shipowner as the Primary Lender, by
Citicorp North America,
Inc., its Attorney-in-fact
By By
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Name: A. ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
CITIBANK INTERNATIONAL PLC, CITIBANK, N.A.,
as the Facility Agent as the Alternate Lender
By By
----------------------------------- -------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: Ae ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Title: Vice President
CITICORP NORTH AMERICA, INC.,
as the Administrative Agent
By
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CONSENT
Pursuant to Section 11.08 of the Credit Agreement, the Secretary hereby
consents to this Amendment No. 1 to Credit Agreement and confirms the continued
Guarantee of the Obligation of the United States of America pursuant to Title ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended.
(SEAL) UNITED STATES OF AMERICA,
SECRETARY OF TRANSPORTATION
BY: MARITIME ADMINISTRATOR
ATTEST: By
------------------------------------
Secretary
Maritime Administration
By
-----------------------------
Assistant Secretary
Maritime Administration
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