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EXHIBIT 10.4.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
MASTER LOAN RESTRUCTURING AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED MASTER
LOAN RESTRUCTURING AGREEMENT (hereinafter called the "First
Amendment") dated as of November 28, 1995 is by and between
▇▇▇▇▇▇ Deep Seas, Ltd., a Texas limited partnership (the
"Partnership"), Texas Commerce Bank, National Association
("TCB"), CoMac Partners ("CoMac") and Chemical Bank ("Chemical";
collectively with TCB and CoMac, referred to as the "Banks") and
Chemical Bank, as agent (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Partnership and the Banks entered into that
certain Second Amended and Restated Master Loan Restructuring
Agreement effective as of March 31, 1995 (the "Agreement")
whereby, upon the terms and conditions therein stated, the Banks
agreed to modify the terms of their loans to the Partnership as
provided in the Agreement; and
WHEREAS, the Partnership desires to re-document the Vessels
(as defined in the Agreement) under the flag of the Republic of
Panama, and the Banks have consented to same; and
WHEREAS, the Partnership and the Banks mutually desire to
amend certain aspects of the Agreement and related documents to
reflect the above;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
GENERAL TERMS
1.01 Terms Defined in Agreement. As used in this First Amendment,
except as may otherwise be provided in Section 1.02 hereof, all
capitalized terms which are defined in the Agreement shall have
the same meaning herein as therein, all of such terms and their
definitions being incorporated herein by reference.
1.02 Amended Definitions. The following terms which are defined in
the Agreement are amended in their entirety as follows:
"Agreement" shall mean the Second Amended and Restated
Master Loan Restructuring Agreement dated as of March 31,
1995, as amended by the First Amendment, as may be further
amended, supplemented or otherwise modified from time to
time.
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"Eagle Mortgage" shall mean the Panamanian Indenture of
First Naval Mortgage dated as of November 28, 1995 by the
Partnership in favor of the Agent, as the same may be
amended, supplemented or otherwise modified from time to
time, substantially in the form of Exhibit C-3, attached to
the First Amendment.
"Eagle Mortgage Amendment" shall mean the Amendment No.
3 to First Preferred Ship Mortgage dated as of March 31,
1995, substantially in the form of Exhibit C-1.
"Eagle Vessel" shall mean that certain semi-submersible
offshore drilling unit named the "▇▇▇▇▇▇ EAGLE" (formerly
known as the "Diamond M Eagle" and then the "Eagle"),
Panamanian Provisional Patente No.24449-PEXT.
"EOI" shall mean Eagle Oceanics, Inc., a Delaware
corporation and wholly owned subsidiary of ▇▇▇▇▇▇.
"Existing Eagle Mortgage" shall mean the First
Preferred Ship Mortgage, made and dated August 4, 1982, by
Diamond M Eagle, Ltd., a predecessor in interest to the
Partnership, to Chemical, as amended by the First Amendment
thereto dated April 26, 1988, Amendment No. 2 to First
Preferred Ship Mortgage dated November 12, 1992, and the
Eagle Mortgage Amendment.
"Existing Hunter Mortgage" shall mean the First
Preferred Ship Mortgage, made and dated December 29, 1981,
by Diamond M Hunter, Ltd., a predecessor in interest to the
Partnership, to Chemical, as amended by the First Amendment
thereto dated April 26, 1988, Amendment No. 2 to First
Preferred Ship Mortgage dated November 12, 1992, and the
Hunter Mortgage Amendment.
"Funding Agreement" shall mean the Third Amended and
Restated Funding Agreement dated as of March 31, 1995 among
▇▇▇▇▇▇, the Partnership and the Partners, as amended by
First Amendment to Third Amended and Restated Funding
Agreement dated November 28, 1995, as may be further
amended, supplemented or otherwise modified from time to
time.
"Hunter Mortgage" shall mean the Panamanian Indenture
of First Naval Mortgage dated as of November 28, 1995 by the
Partnership in favor of the Agent, as the same may be
amended, supplemented or otherwise modified from time to
time, substantially in the form of Exhibit C-4, attached to
the First Amendment.
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"Hunter Mortgage Amendment" shall mean the Amendment
No. 3 to First Preferred Ship Mortgage dated as of
March 31, 1995, substantially in the form of Exhibit C-2.
"Hunter Vessel" shall mean that certain semi-
submersible offshore drilling unit named the "▇▇▇▇▇▇ ▇▇▇▇▇▇"
(formerly known as the "Diamond M Hunter" and then the
"Eagle"), Panamanian Provisional Patente No. 24452-PEXT.
"Partner Mortgage Amendment" shall mean that certain
Amendment No. 2 to Preferred Fleet Mortgage on the Hunter
Vessel and the Eagle Vessel dated as of March 31, 1995
executed by the Partnership in favor of ▇▇▇▇▇▇.
"Partner Mortgages" shall mean the AOI Mortgage as
defined in the Funding Agreement.
"Security Documents" shall be the collective reference
to the Restructure Security Agreement, the Intercreditor
Agreement, the Mortgages, the Trust Indenture and any
Transfer Notices delivered to the Agent.
1.03 Additional Definitions. The following terms are hereby added
as defined terms in the Agreement:
"Existing Partner Mortgages" shall mean the Existing
AOI Mortgage as defined in the Funding Agreement.
"First Amendment" shall mean that certain First
Amendment to Second Amended and Restated Master Loan
Restructuring Agreement dated as of November 28, 1995.
"Indemnification Agreement" shall mean that certain
Indemnification Agreement dated as of November 28, 1995
executed by ▇▇▇▇▇▇, substantially in the form of Annex A
attached to the First Amendment.
"Trust Indenture" shall mean the Second Amended and
Restated Trust Indenture dated as of March 31, 1995 between
the Partnership and Chemical as Vessel Trustee,
substantially in the form of Exhibit H, as amended by the
First Amendment to the Second Amended and Restated Trust
Indenture dated November 28, 1995, as may be further
amended, supplemented or otherwise modified from time to
time.
1.04 Confirmation and Extent of Changes. All terms which are
defined in the Agreement shall remain unchanged except as
specifically provided in Sections 1.02 and 1.03 of this First
Amendment.
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ARTICLE II
REVISIONS TO AGREEMENT
2.01 Existing Liens. Section 2.1 of the Agreement is hereby amended
to read in its entirety as follows:
"2.1 Existing Liens. Except with respect to the
Existing Eagle Mortgage and the Existing Hunter Mortgage
which have been replaced by the Mortgages, the Partnership
hereby confirms and acknowledges that without the necessity
of further action by any party, the Existing Liens (a) are
unimpaired and continue to be fully perfected security
interests in favor of the Agent, and (b) continue to
constitute collateral security for the Partnership's
obligations to the Banks under this Agreement, the Term
Notes and the other Restructuring Documents."
2.02 Existing Documents Superseded. Section 2.3(e) of the Agreement
is hereby amended to read in its entirety as follows:
"(e) On the date of the First Amendment, the Liens
created by the Existing Collateral Documents other than the
Existing Eagle Mortgage and the Existing Hunter Mortgage
shall be continued pursuant to the Restructure Security
Agreement and the other Security Documents."
2.03 Mortgages Superseded. The following provisions are hereby
added as Sections 2.3(f) and (g) of the Agreement to read in
their entirety as follows:
"(f) On the date of the First Amendment, the Existing
Eagle Mortgage shall be superseded by the Eagle Mortgage and
the Existing Hunter Mortgage shall be superseded by the
Hunter Mortgage.
(g) On the date of the First Amendment, the Existing
Partner Mortgages shall be superseded by the Partner
Mortgages."
2.04 Citizen Representation. The last sentence of Section 6.1(a) of
the Agreement is hereby deleted.
2.05 Mortgages. Section 6.1(b) of the Agreement is hereby amended
to read in its entirety as follows:
"The Partnership has the power, and has taken all necessary
action (including, without limitation, action under the
Partnership Agreement and the TRLPA), (i) to execute,
deliver and perform its obligations under the Agreement, the
Term Notes, the Security Documents, the Assumption Agreement
and each other Restructuring Document to which it is a
party, and to perform under the Mortgages and the
Restructuring Documents to which it is a party, (ii) to
assign, and grant to the Agent for the benefit of the Banks,
a valid first security interest in, the collateral described
in the Restructure Security Agreement, and (iii) to grant
first priority mortgages on the Vessels under the laws of
the Republic of Panama pursuant to the Mortgages. Except
for completion of all formalities to convert in due course,
the Provisional Patente on each of the Vessels into a
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Permanent Patent, no consent, license, approval or
authorization of, or registration or declaration with, any
Person (including any Governmental Authority) is required in
connection with (x) the execution and delivery of this
Agreement, the Term Notes, the Security Documents, the
Assumption Agreement and the other Restructuring Documents
to which it is a party or (y) the performance of the
Mortgages and the Restructuring Documents to which it is a
party (other than those required in connection with the
Mortgages and filings under the Uniform Commercial Code with
respect to the collateral described in the Restructure
Security Agreement) or (z) the validity or enforceability
against the Partnership of the Mortgages, the Assumption
Agreement and the Restructuring Documents to which it is a
party, except such consents, authorizations, licenses,
approvals, registrations and declarations which have been
obtained or made and are in full force and effect."
2.06 Mortgages. Section 6.1(j) of the Agreement is hereby amended
to read in its entirety as follows:
"(j) Mortgages. (i) When each Mortgage has been duly
executed by the Partnership and delivered to the Agent and
duly recorded in the office listed on Schedule 4 hereto,
each of the Mortgages will constitute a first priority
mortgage on such Vessel in favor of the Agent for the
benefit of the Banks named therein, having the effect and
with the priority provided under the laws of the Republic of
Panama."
2.07 Insurance. Section 8.4(c) of the Agreement is hereby amended
to read in its entirety as follows:
"(c) at all times cause each Vessel to be insured to
the extent required by the terms of the applicable
Mortgage."
2.08 Recorded Mortgages. The following provisions are hereby added
as Sections 10.1(o), (p), (q), (r) and (s) of the Agreement as
additional Events of Default to read in their entirety as
follows:
"(o) The Agent shall not have received within fifteen
(15) Business Days of the date the First Amendment is
executed (i) an original of each Mortgage bearing evidence
of recordation by the relevant Vessel Recording office
reflected in Schedule 4 to this Agreement, and
(ii) authenticated copies of documentation issued by the
Republic of Panama indicating that each Vessel is owned by
the Partnership free and clear of all mortgages or other
encumbrances other than the relevant Mortgage and Partner
Mortgages; or
(p) The Agent shall not have received within thirty
(30) Business Days of the date the First Amendment is
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executed a Permanent [Reglamentary] Patente on the Eagle
Vessel and the Hunter Vessel; or
(q) The Agent shall not have received by Closing, a
certificate executed by the General Partner attaching a list
of the trade accounts payable of the Partnership as of
September 30, 1995 and certifying that all such accounts
payable will be paid as provided in Section 10.1(s); or
(r) The Agent shall not have received by the forty-
fifth (45th) day of the month following the month in which
Closing occurs, a certificate executed by the General
Partner attaching a list of the trade accounts payable of
the Partnership as of the last day of the month in which
Closing occurs and certifying that all such accounts payable
will be paid within sixty (60) days; or
(s) The Agent shall not have received within thirty
(30) days after the expiration of the sixty (60) day period
in Section 10.1(r) above, a certificate executed by the
General Partner certifying that all accounts payable on the
lists delivered pursuant to Sections 10.1(q) and 10.1(r)
above have been paid in full."
2.09 Schedule 4. Schedule 4 of the Agreement is hereby deleted and
replaced with the Schedule 4 attached to this First Amendment.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.01 Representations Repeated. The representations and warranties of
Partnership contained in the Agreement (as modified by this First
Amendment) are true and correct in all material respects at and
as of the time of delivery of this First Amendment, except for
such changes in the facts represented and warranted as are not in
violation of the Agreement or this First Amendment.
3.02 Security Documents. All Security Documents to which the
Partnership is a party shall secure the Term Notes and all of the
indebtedness of Partnership to Banks represented by the Term
Notes as such indebtedness is modified by this First Amendment,
whether or not such Security Documents shall be expressly amended
or supplemented in connection herewith.
3.03 Compliance with Obligations. Partnership has performed and
complied with all agreements and conditions contained in the
Agreement and the Security Documents required to be performed or
complied with by Partnership prior to or at the time of delivery
of this First Amendment.
3.04 No Amendments. Nothing in Article III of this First Amendment
is intended to amend any of the representations or warranties
contained in the Agreement.
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ARTICLE IV.
CONDITIONS
4.01 Closing. The closing (the "Closing") of the transactions
contemplated hereby shall take place at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, commencing at 10:00 A.M., New York time, on November 28,
1995 or such other place or date as to which the Agent, the Banks
and the Partnership shall agree.
4.02 Conditions Precedent. Each of the parties hereto expressly
acknowledges that each of the following conditions is integral to
the effectiveness of the agreements of the Agent and the Banks
herein and that no such agreement shall be effective until the
documents or instruments delivered at the Closing by the Agent or
any Bank prior to the completion of all such conditions in
connection with or in furtherance of any such agreement shall be
so delivered in escrow until each of the following conditions
shall have been satisfied:
(A) Agreements. This First Amendment shall have been
duly executed and delivered by each of the parties hereto, and
each of the following agreements, amendments or instruments
shall have been duly executed and delivered by the respective
parties thereto and shall not have been terminated and the
conditions to the effectiveness of such agreements, amendments
or instruments shall have been fulfilled:
(i) the Mortgages;
(ii) First Amendment to Third Amended and Restated
Funding Agreement;
(iii) First Amendment to Second Amended and
Restated Trust Indenture; and
(iv) the Indemnification Agreement.
(b) Resolutions. The Agent shall have received resolutions,
certified by the Secretary, Assistant Secretary or general
partner, as the case may be, of each of the following
corporations or limited partnerships, of the Board of Directors
or partners (general and limited), as the case may be, of each of
the following corporations or limited partnerships as to the
following matters:
(i) of the Partnership authorizing the
execution, delivery and performance of this First
Amendment and the documents listed in 4.02(a) of this
First Amendment to which it is a party;
(ii) of ▇▇▇▇▇▇ authorizing the execution,
delivery and performance of the Indemnification
Agreement; and
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(iii) of each of AHC, AODC and EOI authorizing the
execution, delivery and performance of the First
Amendment to Third Amended and Restated Funding
Agreement.
(c) Incumbency Certificates. The Agent shall have received a
certificate of the Secretary or general partner, as the case may
be, of each of the Partnership, ▇▇▇▇▇▇, AHC, AODC and EOI
certifying as to the incumbency and signature of each officer of
such corporation authorized to sign the documents and agreements
to which such corporation or limited partnership is a party (and
each instrument referred to in such documents and agreements),
together with evidence of the incumbency and signature of such
Secretary or the person signing on behalf of such general
partner, as the case may be.
(d) Vessel Documents. The Agent shall have received:
(i) an original of each of the Mortgages,
executed and acknowledged by the Partnership;
(ii) authenticated copies of documentation issued
by the Republic of Panama indicating that each Vessel
is owned by the Partnership free and clear of all
mortgages or other encumbrances other than the relevant
Mortgage and Partner Mortgages; and
(iii) an original of the Trust Indenture as
amended, executed by the Partnership.
(e) Legal Opinions. The Agent shall have received the following
legal opinions, each dated as of the date of this First
Amendment:
(i) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel to the Partnership, substantially in the form
of Annex B to this First Amendment;
(ii) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to
▇▇▇▇▇▇, AHC, AODC and EOI substantially in the form of
Annex C to this First Amendment; and
(iii) an opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
Panamanian counsel to the Partnership, substantially in
the form of Annex D to this First Amendment.
(f) Financial Information. The Agent shall have received each of
the financial statements referred to in subsection 6.1(f) of the
Agreement, which statements substantially conform to the
requirements of such subsection and shall be in form and
substance satisfactory to the Agent.
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(g) Other Agreements/Matters. The Partnership shall have duly and
validly issued, executed and delivered to Banks this First
Amendment and such other documents as the Agent may reasonably
request in connection with the transactions contemplated by the
Agreement in form and substance reasonably satisfactory to the
Agent and its counsel.
4.03 Release of Mortgages. The Partnership acknowledges and
consents that the Agent shall not be required to release the
Existing Eagle Mortgage or the Existing Hunter Mortgage unless
and until the Agent has received the opinion of Panamanian
counsel to the Partnership.
ARTICLE V
MISCELLANEOUS
5.01 Amend Loan Documents. The Partnership and the Banks expressly
agree that all documents and instruments executed in connection
with the Term Notes and dated as of March 31, 1995, are hereby
amended to reflect the terms of this First Amendment and the
matters referred to herein.
5.02 Extent of Amendments. Except as otherwise expressly provided
herein, the Agreement, the Security Documents, and the other
instruments and agreements referred to therein are not amended,
modified or affected by this First Amendment. Except as
expressly set forth herein, all of the terms, conditions,
covenants, representations, warranties and all other provisions
of the Agreement are herein ratified and confirmed and shall
remain in full force and effect.
5.03 References. On and after the date on which this First
Amendment becomes effective, the terms, "this Agreement,"
"hereof," "herein," "hereunder" and terms of like import, when
used herein or in the Agreement shall, except where the context
otherwise requires, refer to the Agreement, as amended by this
First Amendment.
5.04 Counterparts. This First Amendment may be executed by one or
more of the parties to this Agreement on any number of separate
counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the
copies of this First Amendment signed by all the parties shall be
lodged with the Partnership and the Agent.
5.05 GOVERNING LAW. THIS FIRST AMENDMENT, THE AGREEMENT AND THE
TERM NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.06 Severability. The invalidity of any one or more covenants,
phrases, clauses, sentences or paragraphs of this First Amendment
shall not affect the remaining portions of this First Amendment
or any part hereof, and in case of any such invalidity, this
First Amendment shall be construed as if such invalid covenants,
phrases, clauses, sentences or paragraphs had not been inserted.
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5.07 Release of Mortgages. By execution of this First Amendment,
each of the Banks hereby authorizes and directs the Agent to
release the Existing Eagle Mortgage and Existing Hunter Mortgage
in connection with the re-documentation of the Vessels under the
flag of the Republic of Panama.
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above
written.
▇▇▇▇▇▇ DEEP SEAS, LTD.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ CO., General Partner
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Address: Same as
Subsection 13.2 of the Agreement
CHEMICAL BANK
as Agent and as a Bank
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Address: Same as
Subsection 13.2 of the Agreement
TEXAS COMMERCE BANK,
NATIONAL ASSOCIATION
By:
Name:
Title: Vice President
Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.:
Telecopy:
Telephone Confirmation:
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COMAC PARTNERS
By:
Name:
Title: General Partner
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Schedule 4 to Second Amended and Restated Master Loan
Restructuring Agreement
MORTGAGE RECORDING OFFICES
REPUBLIC OF PANAMA
MINISTERIO DE HACIENDA Y TESORO
DIRECCION GENERAL CONSULAR Y DE ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ NACIONAL
DEPARTAMENTO ▇▇ ▇▇▇▇▇
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ANNEX A
Form of ▇▇▇▇▇▇ Indemnification Agreement
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ANNEX B
Opinion of counsel to the Partnership
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ANNEX C
Opinion of counsel to ▇▇▇▇▇▇, AHC, AODC and EOI
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ANNEX D
Opinion of Panamanian counsel to the Partnership
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EXHIBIT C-3
Form of Panamanian Indenture of First Naval Mortgage
(▇▇▇▇▇▇ Eagle)
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EXHIBIT C-4
Form of Panamanian Indenture of First Naval Mortgage
(▇▇▇▇▇▇ ▇▇▇▇▇▇)