SUPPLEMENT NO. 1 TO TRUST INDENTURE
Exhibit 4.2
THIS SUPPLEMENT NO. 1, dated as of January 25, 2002 (this “Supplement No. 1”), to that certain
Trust Indenture, dated as of August 16, 2000 (the “Indenture”), is by and between WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as indenture trustee (the “Indenture Trustee”), and CAL
DIVE I-TITLE XI, INC., a Texas corporation (the “Shipowner,” and together with the Indenture
Trustee, the “Parties”).
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;
WHEREAS, pursuant to the Credit Agreement, as amended by Amendment No. 1 to Credit Agreement,
dated the date hereof, the Lenders agree inter alia to revise the Available Amount thereunder to
$160,182,000 and to change the Final Disbursement Date, Payment Dates, Interest Payment Dates and
Stated Maturity of the Floating Rate Note;
WHEREAS, pursuant to the Indenture, the Parties hereto wish to enter into this Supplement No.
1 providing for the issuance of Obligations up to the aggregate principal amount of $160,182,000,
to reflect the revised Delivery Date and to make other technical amendments;
WHEREAS, Section 10.04 of Exhibit 1 to the Indenture provides that the Shipowner and the
Indenture Trustee may, with the consent of the Secretary, and all Obligees affected thereby, from
time to time enter into indentures supplemental thereto for the purpose, among other things, of
changing the Payment Dates, Interest Payment Dates and Stated Maturities of the Obligations and
increasing the aggregate amount of the Obligations; and
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WHEREAS, pursuant to Sections 10.04 and 10.05 of Exhibit 1 to the Indenture, 100% of the
Obligees and the Secretary have consented to this Supplement No. 1.
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:
ARTICLE I
DEFINITIONS; OFFICER’S CERTIFICATE; OPINIONS OF COUNSEL
DEFINITIONS; OFFICER’S CERTIFICATE; OPINIONS OF COUNSEL
SECTION 1.01. Definitions. Schedule A to the Indenture is hereby modified by
amending or adding the following definitions:
“Authorized Newspaper” is amended by deletion of the reference therein to The Journal of
Commerce.
“Floating Rate Note” means the First Amended and Restated Floating Rate Note, substantially
identical to the form of Exhibit A to this Supplement No. 1, appropriately completed.
“Supplement No. 1” means this supplement to the Indenture, dated as of January 25, 2002.
ARTICLE II
THE OBLIGATIONS
THE OBLIGATIONS
The Indenture shall be modified and supplemented as follows:
SECTION 2.01. (a) The Obligations. Section 2(a) of the Special Provisions of the
Indenture is deleted in its entirety and the following is substituted therefor:
“(a) The Obligations issued hereunder shall be a Floating Rate Note
designated the “United States Government Guaranteed Ship Financing
Note, Q4000 Series,” and shall be in the form of Exhibit A
to this Supplement No. 1 to Trust Indenture and, when issued, Fixed
Rate Bonds, designated the “United States Government Guaranteed Ship
Financing Bonds, Q4000 Series,” which shall be in the forms of
Exhibits 3 and 4 to the Indenture, as amended by this Supplement No.
1 to Trust Indenture; and the aggregate principal amount of
Obligations which may be issued and Outstanding under this Indenture
shall not exceed $160,182,000.”
(b) Form of Fixed Rate Bonds. The forms of the Fixed Rate Bonds in Exhibits 3 and 4
to the Special Provisions of the Indenture are hereby amended by substituting “$160,182,000” for
“$138,478,000” wherever the latter amount appears in either such form, and
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by deletion of the phrase “and The Journal of Commerce” in the seventh paragraph of the forms
of the Fixed Rate Bonds.
SECTION 2.02. Scheduled Mandatory Redemptions. (i) The first paragraph of Section
4(a) of the Special Provisions of the Indenture is deleted in its entirety and the following is
substituted therefor:
“(a) Scheduled Mandatory Redemption. The Obligations are
subject to redemption at a Redemption Price equal to 100% of the
principal amount thereof, together with interest accrued thereon to
the applicable Redemption Date, through the operation of scheduled
repayment providing for the semiannual redemption on February 1 and
August 1 of each year, commencing (I) in the case of the Obligations
issued prior to or on the Delivery Date, the earlier of (x) the
Payment Date next succeeding the Delivery Date of the Vessel or (y)
February 1, 2003, and (II) in the case of Obligations issued after
the Delivery Date, the February 1 or August 1 next succeeding the
issue of such Obligations, of the principal amount of Obligations as
specified in the Obligations, plus interest accrued thereon to the
Redemption Date so that the semiannual mandatory redemption of the
aggregate principal amount of the Obligations Outstanding shall be
in the principal amounts set forth in the first revised amortization
schedule (the “First Revised Amortization Schedule”), which is
Exhibit B to Supplement No. 1 to Trust Indenture, as the
same may be revised as provided in the Indenture. There shall be a
final redemption of the remaining outstanding principal of the
Floating Rate Note no later than the earliest of (i) the Payment
Date next preceding four (4) years from the Delivery Date, or (ii)
February 1, 2007, or (iii) the date upon which the Trigger Event (as
hereinafter defined) shall occur, and a final redemption of the
remaining outstanding principal of the Fixed Rate Bonds on the
earliest of (1) August 1, 2027, or (2) twenty-five (25) years from
the Delivery Date. The Stated Maturities of the Serial Bonds shall
be earlier than the Stated Maturities of the Sinking Fund Bonds.”
(ii) The second paragraph of Section 4(a) of the Special Provisions of the Indenture is
amended by changing the date “January 28, 2006” to “February 1, 2007” wherever it appears, and by
changing the date “January 28, 2027” to “August 1, 2027” wherever it appears.
SECTION 2.03. Optional Redemption. Section 4(f) of the Special Provisions of the
Indenture is amended by deleting the “]” at the end of Section 4(f).
SECTION 2.04. The first sentence of Paragraph 4(g)(i) of the Special Provisions of the
Indenture is deleted in its entirety and the following is substituted therefor:
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“(g) Fixed Rate Bond Interest Rate Protection.
(i) The Shipowner shall convert, upon the occurrence of a Trigger
Event, the outstanding indebtedness under the Floating Rate Note to
indebtedness under the Fixed Rate Bonds, which Fixed Rate Bonds shall have a
maturity of no later than the earlier of (i) the twenty-fifth anniversary of
the Delivery Date, or (ii) August 1, 2027.”
SECTION 2.05. Concerning Section 2.02 of Exhibit 1 to the Indenture. Section 5(f) of
the Special Provisions of the Indenture is deleted in its entirety, and the following inserted in
lieu thereof:
“Prior to the earliest of (i) the Payment Date next preceding four
(4) years from the Delivery Date, (ii) February 1, 2007, or (iii)
the date upon which the Trigger Event shall occur, the Shipowner may
enter into amendments to the Guarantee Commitment, supplements to
the Indenture, and amendments to the Authorization Agreement and
such other documents as may be necessary or advisable to provide for
one or more issuances of Fixed Rate Bonds in the form of Exhibit 3
hereto for the Serial Bonds and in the form of Exhibit 4 hereto for
the Sinking Fund Bonds, as amended by Supplement No. 1 to Trust
Indenture, for the purpose of repaying the Floating Rate Note and/or
financing an amount equal to the Available Amount (which amount
shall be deposited into the Escrow Fund established by the Security
Agreement), and/or financing an amount up to but not exceeding the
Actual Cost or Depreciated Actual Cost of the Vessel, as the case
may be; provided, however, that the Shipowner shall
have obtained, and the Shipowner and Indenture Trustee shall have
received, the prior written consent of the Secretary;
provided, further, that (a) except for the final
issuance or in the case of the Trigger Event, each issuance of the
Fixed Rate Bonds must be in a minimum aggregate principal amount of
$20,000,000, and (b) the proceeds from the issuance of the Fixed
Rate Bonds shall be used either to pay off, satisfy and cancel all
or a portion of the outstanding principal amount of the Floating
Rate Note, or for deposit into the Escrow Fund and disbursement
therefrom in accordance with Article V of the Security Agreement for
items of Actual Cost or the Depreciated Actual Cost, as the case may
be; and provided, finally, that in the absence of
the Trigger Event during the Construction Period, the Floating Rate
Note need not be paid off in its entirety and need only be reduced
by the net proceeds from the issuance of the Fixed Rate Bonds
allocated by the Shipowner to such reduction.”
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SECTION 2.06. Concerning Section 2.10 of Exhibit 1 to the Indenture.
(a) The original Floating Rate Note may be transferred at the Corporate Trust Office, by
surrender of the original Floating Rate Note for cancellation, accompanied by an instrument of
transfer in form satisfactory to the Shipowner and the Indenture Trustee, duly executed by the
registered Obligee or his duly authorized attorney, and thereupon the Shipowner shall execute, and
the Indenture Trustee shall authenticate and deliver in the name of the transferee, a new Floating
Rate Note and the Guarantee of the United States thereon, in the form of Exhibit A to this
Supplement No. 1, and for the increased aggregate principal amount of $160,182,000.
(b) On and after the date of this Supplement No. 1, the Shipowner shall not execute and the
Indenture Trustee shall not authenticate, transfer, exchange or deliver any Obligation in the form
of Exhibit 2 to the Indenture, but only in the form of Exhibit A to this Supplement No. 1,
and Exhibits 3 and 4 to the Indenture, as supplemented by this Supplement No. 1.
ARTICLE III
FIRST REVISED AMORTIZATION SCHEDULE
FIRST REVISED AMORTIZATION SCHEDULE
SECTION 3.01. Revised Amortization Schedule. Attached hereto as Exhibit B to
this Supplement No. 1, and in accordance with Section 3.02(e) of Exhibit 1 to the Indenture, is the
First Revised Amortization Schedule of scheduled repayments of the Obligations reflecting the
changes in redemption of the principal amount of the Obligations in accordance with the Indenture
as supplemented by this Supplement No. 1.
ARTICLE IV
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
SECTION 4.01. The Indenture Trustee accepts the modifications of the Indenture hereby effected
only upon the terms and conditions set forth in the Indenture, as supplemented and amended by this
Supplement No. 1.
SECTION 4.02. All capitalized terms used herein which are not otherwise defined herein have
the meanings set forth in Schedule A to the Indenture.
SECTION 4.03. Except as so amended, the provisions of the Indenture are hereby confirmed, and
shall remain in full force and effect.
SECTION 4.04. This Supplement 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.
SECTION 4.05. Notwithstanding any provision herein, in the event there are any inconsistencies
between the original of this document held by the Secretary, and an original held by the other
party to this transaction, the provisions of the original held by the Secretary shall prevail.
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(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, this Supplement No. 1 to Trust Indenture has been duly executed by the
Parties on the day and year first above written.
| CAL DIVE I-TITLE XI, INC., | ||||||||||
| as Shipowner | ||||||||||
| By | /s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||||
| Name: A. ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||||||
| Title: Vice President | ||||||||||
| Attest: | ||||||||||
By |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||||||
| Title: Vice President | ||||||||||
| WILMINGTON TRUST COMPANY, | ||||||||||
| as Indenture Trustee | ||||||||||
| By | /s/ ▇▇▇▇ ▇. ST. ▇▇▇▇▇ | |||||||||
| Name: ▇▇▇▇ ▇. ST. Amand | ||||||||||
| Attest: | Title: Asst. Vice President | |||||||||
By |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||||||
| Title: Asst. Vice President | ||||||||||
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