Exhibit 4.14
SECOND AMENDMENT
This Second Amendment (this "Second Amendment") dated as of February
14, 2003 is entered into by and among Cal Dive/Gunnison Business Trust No.
2001-1, a Delaware business trust (the "Borrower"), Energy Resources Technology,
Inc., a Delaware corporation (the "Beneficiary"), Cal Dive International, Inc.,
a Minnesota corporation (the "Parent Guarantor"), the Lenders party to the
Amended and Restated Credit Agreement referred to below, and Bank One, NA, a
national banking association having its principal office in Chicago, Illinois,
as agent for such Lenders (in such capacity, the "Agent"). The parties hereto
agree as follows:
WHEREAS, the Borrower, the Beneficiary, the Parent Guarantor,
Wilmington Trust Company, a Delaware banking corporation, the Lenders party
thereto, and the Agent entered into that certain Amended and Restated Credit
Agreement dated as of July 26, 2002 (the "Original Agreement"); and
WHEREAS, the Original Agreement was amended pursuant to that certain
First Amendment dated as of January 7, 2003 among the Borrower, the Beneficiary,
the Parent Guarantor, Wilmington Trust Company, a Delaware banking corporation,
the Lenders party thereto, and the Agent (the "First Amendment"); and
WHEREAS, the Borrower has requested certain amendments to the Original
Agreement as amended by the First Amendment (the original Agreement as amended
by the First Amendment is hereinafter referred to as the "Agreement") and the
parties hereto are willing to agree to such amendments in accordance with the
terms of this First Amendment;
NOW, THEREFORE, in consideration of the undertakings set forth herein
and other good and valuable consideration, the parties hereto hereby agree as
follows:
SECTION 1. DEFINED TERMS. Capitalized terms used and not otherwise
defined in this Second Amendment shall have the meanings attributed to them in
Article I of the Agreement.
SECTION 2. AMENDMENT OF AGREEMENT. Upon the satisfaction of the
conditions precedent set forth in Section 4 of this Second Amendment but
effective as of the date hereof, the Agreement shall be amended as follows:
(i) The definition of "EBIT" set forth in Article I of the
Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following new definition of "EBIT":
"'EBIT' means for any period, on a consolidated
basis, for the Parent Guarantor and its Consolidated
Subsidiaries, the sum of the amounts for such period, without
duplication of: (i) Net Income, plus (ii) charges against
income for foreign, federal, state and local taxes, to the
extent deducted in computing Net Income, plus (iii) Interest
Expense, plus (iv) extraordinary or non-recurring non-
cash losses to the extent deducted in computing Net Income,
minus (v) extraordinary or non-recurring non-cash gains to the
extent included in computing Net Income; provided, however,
that (A) EBIT shall not include the Deepwater Clawback
Obligations, and (B) a one-time charge in the fourth quarter
of 2002 in an amount not to exceed USD 5,200,000 arising out
of the settlement of a lawsuit brought by EEX, Inc. against
Cal Dive may be excluded from the determination of EBIT."
(ii) The definition of "EBITDA" set forth in Article I of the
Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following new definition of "EBITDA":
"'EBITDA' means, for any period, on a consolidated
basis, for the Parent Guarantor and its Consolidated
Subsidiaries, the sum of the amounts for such period, without
duplication of (i) Net Income, plus (ii) charges against
income for foreign, federal, state and local taxes, to the
extent deducted in computing Net Income, plus (iii) Interest
Expense, plus (iv) depreciation expense, to the extent
deducted in computing Net Income, plus (v) amortization
expense, including without limitation amortization of
goodwill, other intangible assets and transaction expenses, to
the extent deducted in computing Net Income, plus (vi)
extraordinary or non-recurring non-cash losses to the extent
deducted in computing Net Income, minus (vii) extraordinary or
non-recurring non-cash gains to the extent included in
computing Net Income; provided, however, that (A) EBITDA shall
not include the Deepwater Clawback Obligations, and (B) a
one-time charge in the fourth quarter of 2002 in an amount not
to exceed USD 5,200,000 arising out of the settlement of a
lawsuit brought by EEX, Inc. against Cal Dive may be excluded
from the determination of EBITDA."
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders to execute and deliver this Second Amendment, each of the Borrower, the
Beneficiary, the Parent Guarantor, the Trustee and Wilmington Trust Company
hereby confirms, reaffirms and restates as of the date hereof its respective
representations and warranties set forth in Article V and/or Sections 5A.1 and
5A.3 of the Agreement provided that such representations and warranties shall be
and hereby are amended as follows: each reference therein to "this Agreement"
(including, without limitation, each such a reference included in the term "Loan
Documents" and all indirect references such as "hereby", "herein", "hereof" and
"hereunder") shall be deemed to be a collective reference to the Agreement, this
Second Amendment and the Agreement as amended by this Second Amendment. A
Default under and as defined in the Agreement as amended by this Second
Amendment shall be deemed to have occurred if any representation or warranty
made pursuant to the foregoing sentence of this Section 3 shall be materially
false as of the date on which made.
SECTION 4. CONDITIONS PRECEDENT. This Second Amendment and the waivers
and amendments provided for herein shall become effective as of the date hereof
on the date on which the Agent shall have (i) executed a counterpart of this
Second Amendment, and (ii)
Page 2
received one or more counterparts of this Second Amendment executed by the
Borrower, the Beneficiary, the Parent Guarantor, Wilmington Trust Company and
the Required Lenders.
SECTION 5. EFFECT ON THE AGREEMENT. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
Agreement and the other Loan Documents (i) shall remain unaltered, (ii) shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms, and (iii) are hereby ratified and confirmed in all
respects. Upon the effectiveness of this Second Amendment, all references in the
Agreement (including references in the Agreement as amended by this Second
Amendment) to "this Agreement" (including, without limitation, each such a
reference included in the term "Loan Documents" and all indirect references such
as "hereby", "herein", "hereof" and "hereunder") shall be deemed to be a
collective reference to the Agreement as amended by this Second Amendment.
SECTION 6. CONFIRMATION GUARANTIES. Without limiting the provisions of
Section 5 of this Second Amendment, (i) the Parent Guarantor hereby (a) confirms
and agrees that none of the terms of this Second Amendment or any other
agreement or document executed in connection herewith or contemplated herein
shall release, discharge, or otherwise limit or affect in any manner any of its
obligations under the Parent Guaranty, (b) confirms and agrees that the term
"Credit Agreement" as used and defined in the Parent Guaranty shall mean and
include the Agreement as amended by this Second Amendment, and (c) ratifies and
confirms the Parent Guaranty and all of its obligations thereunder, and (ii) the
Beneficiary hereby (a) confirms and agrees that none of the terms of this Second
Amendment or any other agreement or document executed in connection herewith or
contemplated herein shall release, discharge, or otherwise limit or affect in
any manner any of its obligations under the Beneficiary Guaranty, (b) confirms
and agrees that the term "Credit Agreement" as used and defined in the
Beneficiary Guaranty shall mean and include the Agreement as amended by this
Second Amendment, and (c) ratifies and confirms the Beneficiary Guaranty and all
of its obligations thereunder.
SECTION 7. EXPENSES. The Borrower shall reimburse the Agent for any and
all reasonable costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent) paid or incurred by the Agent in connection with the
preparation, review, execution and delivery of this Second Amendment.
SECTION 8. ENTIRE AGREEMENT. This Second Amendment, the Agreement as
amended by this Second Amendment and the other Loan Documents embody the entire
agreement and understanding between the parties hereto and supersede any and all
prior agreements and understandings between the parties hereto relating to the
subject matter hereof.
SECTION 9. HEADINGS. The headings, captions, and arrangements used in
this Second Amendment are for convenience only and shall not affect the
interpretation of this Second Amendment.
Page 3
SECTION 10. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
SECTION 11. INSTRUCTIONS TO TRUSTEE. By signing this Second Amendment,
the Beneficiary hereby (i) acting pursuant to Section 6.6 of the Trust
Agreement, authorizes and directs the Trustee to execute and deliver this Second
Amendment, and (ii) confirms that all action taken by the Trustee in connection
with this authorization and direction is covered by the indemnification, fee and
expense reimbursement provisions set forth in Sections 5.2 and 5.3 of the Trust
Agreement.
SECTION 12. LIMITATION OF LIABILITY OF OWNER TRUSTEE. It is expressly
understood and agreed by and among the parties hereto that, except as otherwise
expressly provided in Section 3 hereof or therein, this Second Amendment is
executed by Wilmington Trust Company, not individually or personally but solely
as Trustee under the Trust Agreement in the exercise of the power and authority
conferred and vested in it as such Trustee, that each and all of the
representations, undertakings and agreements herein or therein made on the part
of the Trustee or the Borrower are intended not as personal representations,
undertakings and agreements by Wilmington Trust Company, or for the purpose or
with the intention of binding Wilmington Trust Company, personally, but are made
and intended for the purpose of binding only the Trust Estate, that nothing
herein contained shall be construed as creating any liability of Wilmington
Trust Company, or any incorporator or any past, present or future subscriber to
the capital stock of, or stockholder, officer or director of Wilmington Trust
Company, to perform any covenant either express or implied contained herein or
in the other Loan Documents to which the Trustee or the Borrower is a party, and
that so far as Wilmington Trust Company is concerned, any Person shall look
solely to the Trust Estate for the performance of any obligation hereunder or
thereunder or under any of the instruments referred to herein or therein;
provided, however, that nothing contained in this Section shall be construed to
limit in scope or substance the general corporate liability of Wilmington Trust
Company, expressly provided (i) to the Certificate Holders under the Trust
Agreement, (ii) in respect of those representations, warranties, agreements and
covenants of Wilmington Trust Company expressly set forth in Section 3 hereof,
or (iii) pursuant to the Trust Agreement, for the gross negligence or willful
misconduct of Wilmington Trust Company or to exercise the same degree of care
and skill as is customarily exercised by similar institutions in the receipt and
disbursement of moneys actually received by it in accordance with terms of the
Loan Documents under similar circumstances.
SECTION 13. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Second Amendment by
signing any such counterpart.
Page 4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date first above written.
CAL DIVE/GUNNISON BUSINESS TRUST
No. 2001-1
By: Wilmington Trust Company, not in its
individual capacity, but solely as trustee of Cal
Dive/Gunnison Business Trust No. 2001-1
By:
-------------------------------------------
Title:
----------------------------------------
WILMINGTON TRUST COMPANY,
in its individual capacity to the extent
expressly provided herein
By:
----------------------------------------------
Title:
-------------------------------------------
ENERGY RESOURCE TECHNOLOGY, INC.
By:
----------------------------------------------
Title:
-------------------------------------------
CAL DIVE INTERNATIONAL, INC.
By:
-----------------------------------------------
Title:
--------------------------------------------
BANK ONE, NA,
Individually and as Agent
By:
----------------------------------------------
Title:
-------------------------------------------
Page 5
