SUPPLEMENT NO. 2 TO TRUST INDENTURE
Exhibit 4.3
THIS SUPPLEMENT NO. 2, dated as of November 15, 2002 (this “Supplement No. 2”), to that
certain Trust Indenture, dated as of August 16, 2000, as amended by Supplement No. 1 to Trust
Indenture, dated as of January 25, 2002 (as amended, 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 ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended, the Secretary
pursuant to the Guarantee Commitment, dated as of August 16, 2000, as amended by Amendment No. 1
thereto, dated as of January 25, 2002, agreed to a redetermination of the Actual Cost of the Q4000
(the “Vessel”) of $183,065,667, and agreed to guarantee Obligations in an amount which will not
exceed 87-1/2% of Actual Cost, or Depreciated Actual Cost, as the case may be, as determined
pursuant to Amendment No. 1 to Security Agreement, dated as of January 25, 2002, and as reflected
in Table A thereto, as the same may be redetermined from time to time;
WHEREAS, Supplement No. 1 to Trust Indenture, dated as of January 25, 2002, provided, inter
alia, for the issuance of Obligations in an aggregate principal amount not exceeding $160,182,000;
WHEREAS, pursuant to Amendment No. 2 to the Credit Agreement, dated the date hereof, the
Lenders have agreed, inter alia, to change the Final Disbursement Date and Stated Maturity of the
Floating Rate Note;
WHEREAS, pursuant to Amendment No. 2 to Guarantee Commitment, dated the date hereof, the
Secretary has agreed to the issuance by the Shipowner, under the Trust Indenture, of a Floating
Rate Note changing the Stated Maturity.
WHEREAS, pursuant to the Indenture, the Parties wish to enter into this Supplement No. 2 to
reflect the actual Delivery Date, to change the Stated Maturity of the Floating Rate Note, and to
make other technical amendments;
WHEREAS, Sections 10.04 and 10.05 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 Stated Maturities of the Obligations; and
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. 2.
-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:
“Delivery Date” means March 28, 2002, the date on which the Vessel was delivered and accepted
by the Shipowner.
“First Amended and Restated Floating Rate Note” means the first amended and restated Floating
Rate Note, dated as of January 25, 2002, issued pursuant to Supplement No. 1 to Trust Indenture.
“Floating Rate Note” means the Second Amended and Restated Floating Rate Note, dated as of the
date hereof, substantially identical to the form of Exhibit A to this Supplement No. 2,
appropriately completed.
“Supplement No. 2 to Trust Indenture” means this Supplement No. 2 to Trust Indenture, dated as
of November 15, 2002.
ARTICLE II
THE OBLIGATIONS
THE OBLIGATIONS
The Indenture shall be modified and supplemented as follows:
SECTION 2.01. The Obligations. Section 2(a) of the Special Provisions of the
Indenture, as amended by Supplement No. 1 to Trust 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 Supplement No. 2 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 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.”
-2-
SECTION 2.02. Scheduled Mandatory Redemptions. (i) The first paragraph of Section
4(a) of the Special Provisions of the Indenture, as amended by Supplement No. 1 to Trust 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 August 1 and
February 1 of each year, commencing on August 1, 2002, 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 amount set
forth in the second revised amortization schedule (the “Second
Revised Amortization Schedule”) which is Exhibit B to
Supplement No. 2 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 earlier of (i) February 1, 2012, or (ii) 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 February 1, 2027. 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, as
amended by Supplement No. 1 to Trust Indenture, is further amended by deleting said paragraph in
its entirety and by substituting the following therefore:
“Notwithstanding the foregoing provisions of this subsection (a), if
the principal amount of Outstanding Obligations shall be reduced by
reason of any redemption pursuant to Sections 3.04 or 3.06 of
Exhibit 1 to this Indenture, the principal amount of Obligations to
be redeemed pursuant to this subsection (a) on each subsequent
Redemption Date for such Obligations shall be reduced by an amount
equal to the principal amount of such Obligations retired by reason
of such redemption pursuant to Sections 3.04 or 3.06 of Exhibit 1
hereto allocated to each Redemption Date occurring thereafter in
amounts scheduled in a revised Amortization Schedule, as approved by
the Secretary no later than (i) February 1, 2012 in the case of the
Floating Rate Note; (ii) the respective Stated Maturities of the
Serial Bonds; and (iii) February 1, 2027, in the case of the Sinking
Fund Bonds (subject to such increase as shall be necessary so that
the total principal amount of Obligations to be redeemed on any such
Redemption Date shall be an integral
-3-
multiple of ($1,000); provided, that, if less than
all of the Fixed Rate Bonds are to be redeemed under any provision
of the Indenture, the Fixed Rate Bonds selected for redemption shall
be in inverse order of Stated Maturity and; provided,
further, that the entire unpaid principal amount of the
Outstanding Obligations shall be paid no later than February 1, 2012
in the case of the Floating Rate Note, at their respective Stated
Maturities in the case of the Serial Bonds and on February 1, 2027
in the case of the Sinking Fund Bonds. The Shipowner, shall, in
accordance with Section 3.02(e) of Exhibit 1 hereto, promptly after
each redemption pursuant to Sections 3.04 or 3.06, furnish to the
Secretary, the Indenture Trustee and each Holder a revised
Amortization Schedule of scheduled repayments of the Obligations
reflecting the reductions made pursuant to this subsection (a) as a
result of such redemption.”
SECTION 2.03. The first sentence of Paragraph 4(g)(i) of the Special Provisions of the
Indenture, as amended by Supplement No. 1 to Trust Indenture, is deleted in its entirety and the
following is substituted therefor:
“(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 February 1, 2027.”
SECTION 2.04. Concerning Section 2.02 of Exhibit 1 to the Indenture. Section 5(f) of
the Special Provisions of the Indenture, as amended by Supplement No. 1 to Trust Indenture, is
deleted in its entirety, and the following inserted in lieu thereof:
“Prior to the earlier of (i) February 1, 2012, or (ii) 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 up to, but not exceeding, 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, 87-1/2% of the Depreciated Actual Cost of the Vessel;
provided, however, that the
-4-
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 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 Depreciated Actual Cost; and
provided, finally, that in the absence of the
Trigger Event, 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.”
SECTION 2.05. Concerning Section 2.10 of Exhibit 1 to the Indenture.
(a) The First Amended and Restated Floating Rate Note may be transferred at the Corporate
Trust Office, by surrender of the First Amended and Restated 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. 2.
(b) On and after the date of this Supplement No. 2, 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. 2,
and Exhibits 3 and 4 to the Indenture (as supplemented by Supplement No. 1 to Trust Indenture) or
in such form as may be authorized in a further supplement to this Indenture.
ARTICLE III
SECOND REVISED AMORTIZATION SCHEDULE
SECOND REVISED AMORTIZATION SCHEDULE
SECTION 3.01. Second Revised Amortization Schedule. Attached hereto as Exhibit
B to this Supplement No. 2, and in accordance with Section 3.02(e) of Exhibit 1 to the
Indenture, is the Second 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. 2. The Second Revised Amortization Schedule
replaces the Amortization Schedule set forth in Attachment 1 to the original Indenture, as
supplemented by Supplement No. 1 to Trust Indenture.
-5-
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
Supplement No. 1 to Trust Indenture and this Supplement No. 2.
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, as supplemented and amended by Supplement
No. 1 to Trust Indenture and this Supplement No. 2.
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. 2 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.
(SIGNATURE PAGE FOLLOWS)
-6-
IN WITNESS WHEREOF, this Supplement No. 2 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/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, III | |||||||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇ Connor, III | ||||||||||
| Title: Vice President | ||||||||||
| WILMINGTON TRUST COMPANY, | ||||||||||
| as Indenture Trustee | ||||||||||
| By | /s/ ▇▇▇▇ ▇. ST. ▇▇▇▇▇ | |||||||||
| Name: ▇▇▇▇ ▇. St. Amand | ||||||||||
| Attest: | Title: Assistant Vice President | |||||||||
By |
/s/ ▇. ▇. ▇▇▇▇▇▇, ▇▇ | |||||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ | ||||||||||
| Title: Corporate Financial Services Officer | ||||||||||
-7-