CAL DIVE I-TITLE XI, INC. United States Government Guaranteed Ship Financing Bonds, Q4000 Series BOND PURCHASE AGREEMENT
Exhibit 2.1
CAL DIVE I-TITLE XI, INC.
$134,927,000
United States Government Guaranteed Ship Financing Bonds, Q4000 Series
4.93% Sinking Fund Bonds Due February 1, 2027
September 27, 2005
To the Purchaser
Named in Schedule I Hereto:
Named in Schedule I Hereto:
Dear Sirs:
The undersigned, CAL DIVE I-TITLE XI, INC., a Texas corporation (the “Shipowner”),
hereby agrees with you (the “Purchaser”) as follows:
1. The Bonds. The United States Government Guaranteed Ship Financing Bonds, Q4000
Series, due February 1, 2027, referred to above (collectively, the “Bonds”) in the
aggregate principal amount set forth opposite your name in Schedule I hereto are proposed
to be issued and sold by the Shipowner upon fulfillment of the terms and conditions set forth
herein. The Bonds will be issued and sold to aid in the refinancing of the construction of the
vessel Q4000, Official Number 1122763 (the “Vessel”). The Bonds will be in fully
registered form only and will bear interest (calculated on the basis of a 360-day year comprised of
twelve 30-day months) from the date of issuance at the rate per annum set forth above, payable
semiannually in arrears, on February 1 and August 1 of each year until maturity, commencing
February 1, 2006.
The Bonds will be issued pursuant to that certain Trust Indenture, dated as of August 16,
2000, as amended by Supplement No. 1 thereto, dated as of January 25, 2002, Supplement No. 2
thereto, dated as of November 15, 2002, Supplement No. 3 thereto, dated as of December 14, 2004,
and Supplement No. 4 to Trust Indenture, dated as of the Closing Date (as so amended, the
“Indenture”) between the Shipowner and Wilmington Trust Company, a Delaware banking
corporation, as Trustee (the “Indenture Trustee”). Proceeds of the Bonds will be used to
repay the Shipowner’s outstanding indebtedness under a floating rate note, and repay certain items
of cost, all relating to the financing of the Vessel. Payment of the principal of and interest on
the Bonds will be fully and unconditionally guaranteed by the United States of America pursuant to
the guarantee imprinted by the Indenture Trustee pursuant to that certain Authorization Agreement,
dated as of August 16, 2000, as amended by Amendment No. 1 thereto, dated as of January 25, 2002,
Amendment No. 2 thereto, dated as of November 15, 2002, and Amendment No. 3 thereto, dated as of
the Closing Date (as so amended, the “Authorization Agreement”), on each of the
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Bonds (the “Guarantee”) under Title XX xx xxx Xxxxxxxx Xxxxxx Xxx, 0000, as amended and in effect on
the Closing Date (the “Act”). Since the Bonds are guaranteed with the full faith and
credit of the United States of America, it is understood that you will not independently review the
financial condition of the Shipowner and will rely completely on the Secretary’s determination
regarding the financial resources and maritime ability of the Shipowner.
The Bonds will be offered by a term sheet, dated September 27, 2005, and a Final Offering
Circular, dated September 27, 2005 (the “Offering Circular”).
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in
Schedule A to the Indenture.
2. Agreement to Purchase. Subject to the conditions hereinafter set forth, and the
representations and warranties contained herein, the Shipowner agrees to sell to you and you agree
to purchase on the Closing Date the Bonds in the principal amount set forth opposite your name in
Schedule I hereto at one hundred percent (100%) of such principal amount thereof.
3. Closing. Delivery of the Bonds shall be in book-entry form through the facilities
of The Depository Trust Company (“DTC”) in accordance with the procedures undertaken at a
Closing (the “Closing”) commencing at 7:00 a.m., Pacific Time, on September 30, 2005 (the
“Closing Date”), which term includes any later date designated by the Shipowner by at least
three (3) Business Days’ prior written notice to the Indenture Trustee and the Purchaser, unless
such prior notice requirement is waived by the Purchaser (which shall not be later than October 5,
2005). The Closing will be held at the offices of Xxxxx Xxxxxxx LLP, Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, by e-mail, facsimile and previously delivered executed
documents held in escrow. A single Global Obligation, dated as of the Closing Date, authenticated
by the Indenture Trustee, guaranteed by the United States of America, and registered in the name of
Cede & Co., as the nominee of DTC, and issued in a denomination equal to the principal amount of
Bonds to be purchased by you will, against payment therefor to the Shipowner or the Shipowner’s
order at the Closing in immediately available funds, be delivered to the Indenture Trustee as
custodian for DTC for the account of the Purchaser. Except as you may otherwise direct the
Shipowner and the Indenture Trustee, the Indenture Trustee is hereby authorized to receive on your
behalf the Global Obligation at the Closing on the Closing Date, to execute receipt therefor and to
hold such Global Obligation as custodian for DTC. For the purposes of this Bond Purchase Agreement
(this “Agreement”), a “business day” is a day which is not a Saturday, Sunday or bank
holiday under the laws of the United States of America or the States of California, New York or the
District of Columbia.
4. Representations and Warranties by the Shipowner. The Shipowner represents and
warrants to you that: (i) this Agreement has been duly authorized, executed and delivered by the
Shipowner and constitutes, in accordance with its terms, a legal, valid and binding instrument
enforceable against the Shipowner, except as limited by bankruptcy, insolvency, or other laws
affecting the enforcement of creditors’ rights generally; and (ii) on the Closing Date, the
Indenture and the Bonds will have been duly authorized, executed and delivered by the Shipowner and
will constitute legal, valid and binding instruments enforceable against the Shipowner, and the
Bonds
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will be entitled to the benefits of the Indenture, the Guarantees and the Authorization
Agreement. The Shipowner represents that the Bonds, the Indenture, and the Authorization Agreement
conform in all material respects to the descriptions thereof contained in the Offering Circular,
dated September 27, 2005, unless you consent to a change.
5. Conditions of the Purchaser’s Obligations. Your obligation under this Agreement to
purchase Bonds on the Closing Date is subject to the accuracy of the representations and warranties
of the Shipowner contained in Section 4 hereof on and as of the Closing Date and to the following
further conditions:
(A) Opinion of Counsel for the Shipowner. On the Closing Date, the Shipowner shall
have furnished opinions of its General Counsel and special counsel addressed to you and
satisfactory to you regarding the legal aspects of the Bonds and the Guarantees; and
(B) Opinion of the Chief Counsel of the Maritime Administration. On the Closing Date,
your counsel shall have received a copy of a legal opinion from the Maritime Administration
addressed to you and the Indenture Trustee to the effect that the Guarantees and the Authorization
Agreement have been duly authorized, executed and delivered by the United States of America, and
constitute the legal, valid and binding obligations of the United States of America.
(C) Opinion of Counsel to the Purchaser. On the Closing Date, you shall have received
an opinion of your special counsel with respect to the Offering Circular addressed to you and
satisfactory to you.
If any of the conditions specified in this Section 5 shall not have been fulfilled by the
Shipowner when and as required by this Agreement, you may cancel this Agreement and all of your
obligations hereunder on, or at any time prior to, the Closing Date. Notice of such cancellation
shall be given to the Shipowner in writing.
6. Conditions of the Shipowner’s Obligations. The obligations of the Shipowner to
sell and deliver the Bonds under this Agreement on the Closing Date are subject to all of the
following conditions: (A) on the Closing Date all of the Bonds to be delivered by the Shipowner
shall have simultaneously been purchased by you; and (B) on or before the Closing Date (i) the
Secretary shall have duly authorized the execution and delivery of the Guarantee of the Bonds and
shall have duly executed and delivered Amendment No. 3 to Authorization Agreement, and (ii) the
Indenture Trustee shall have duly executed and delivered Supplement No. 4 to Trust Indenture and
the Amendment No. 3 to Authorization Agreement.
7. Entire Agreement Embodied, Changes, Etc. This Agreement and the engagement letter,
dated September 14, 2005 embody the entire agreement and understanding among the Shipowner and you
relating to the subject matter hereof and supersede all other prior agreements and understandings
relating to such subject matter. Neither this Agreement nor any term hereof may be changed, waived,
discharged, or terminated orally, but only by an instrument in writing signed by the party against
whom enforcement of the change, waiver, discharge or termination is sought and with the written
consent of the Secretary.
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8. Market Disruption. This Agreement shall be subject to termination in the absolute
discretion of the Purchaser, by notice given to the Shipowner prior to delivery of and payment for
the Bonds, if prior to such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York State authorities or
a material disruption in commercial banking or securities settlement or clearance services in the
United States shall have occurred, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crises the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the Purchaser after consultation
with the Shipowner, impracticable to market the Bonds.
9. Miscellaneous. (A) Except as otherwise expressly provided in this Agreement, (i)
whenever notice is required by the provisions hereof to be given to the Shipowner, or any other
address specified in a written notice to the Purchaser, such notice shall be in writing addressed
to Cal Dive I-Title XI, Inc., 000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000, Attention: X. X. Xxxxxxx, Vice President, or any other address specified in a
written notice to you, and (ii) whenever notice is required by the provisions of this Agreement to
be given to you, such notice shall be in writing addressed to you at your address set forth in
Schedule I hereto or any other address specified in a written notice to the Shipowner; (B)
this Agreement is made solely for the benefit of and is binding upon and enforceable by you, the
Shipowner, and your respective successors and assigns, and no other person shall acquire or have
any right under, or by virtue of, this Agreement; (C) if this Agreement shall be canceled or
terminated by you because of non-fulfillment of the conditions set forth in Section 5 hereof or
because of the Shipowner’s failure to comply on or before the Closing Date with the conditions
precedent set forth herein, the Shipowner shall have no further obligations or liability hereunder
to you except that the Shipowner will reimburse you for out-of-pocket expenses reasonably incurred
by you (including reasonable fees and disbursements of your counsel and interest on funds forwarded
by you for delivery on the Closing Date to purchase Bonds, such interest to be at the rate borne by
the Bonds for the period from the proposed Closing Date to the date on which such funds are
returned to you); (D) this Agreement shall be governed and construed in accordance with the laws of
the State of New York; and (E) this Agreement may be executed in any number of counterparts, each
of which shall be 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 Bond Purchase Agreement has been executed by the parties hereto as of
the day and year first above written.
| Very truly yours, | ||||
| CAL DIVE I-TITLE XI, INC., | ||||
| as Shipowner | ||||
| By: | /s/ A. XXXX XXXXXXX | |||
| Name: X. X. Xxxxxxx | ||||
| Title: Vice President | ||||
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
confirmed and accepted as of the
date first above written.
| X.X. XXXXXX SECURITIES INC. | ||||
By:
|
/s/ XXXXXXX X. XXXXX
|
|||
| Title: Managing Director | ||||
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SCHEDULE I
Purchaser
|
Aggregate Principal Amount of Bonds To Be Purchased: |
|
X.X. Xxxxxx Securities Inc.
|
$134,927,000 |
Addresses for all communications and
notices:
notices:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Investment Grade Capital Markets
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Investment Grade Capital Markets
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