FIRST AMENDMENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This First Amendment to Credit Agreement and Loan
Documents (this "AMENDMENT") dated as of November 23, 1998 is
among GLOBAL MARINE INC., a Delaware corporation (the
"BORROWER"), the banks named on the signature pages hereto
(together with their respective successors and assigns in such
capacity, the "BANKS"), BANKERS TRUST COMPANY, as administrative
agent for the Banks (together with its successors and assigns in
such capacity, the "ADMINISTRATIVE AGENT"), ABN AMRO BANK, N.V.,
HOUSTON AGENCY, as syndication agent for the Banks, SOCIETE
GENERALE, SOUTHWEST AGENCY, as documentation agent for the Banks
(all of the agents, collectively, together with their successors
and assigns in such capacity, the "AGENTS").
PRELIMINARY STATEMENT
The Borrower, the Banks and the Agents have entered
into that certain Credit Agreement dated as of January 29, 1998
(as amended or restated from time to time, the "CREDIT
AGREEMENT").
The Borrower, the Banks and the Agents wish to amend
the Credit Agreement and execute this Amendment to reflect same.
NOW THEREFORE, in consideration of the foregoing and
the mutual agreements set forth herein, the parties agree as
follows:
Section 1. DEFINITIONS. Unless otherwise defined in
this Amendment, each capitalized term used in this Amendment has
the meaning assigned to such term in the Credit Agreement.
Section 2. AMENDMENTS. The Credit Agreement is hereby
amended as follows:
a. Section 1.01 of the Credit Agreement is hereby
amended by: (i) replacing the phrase "Maturity Date" with
the phrase "Revolving Loan Maturity Date" in subsection (i)
of paragraph (a) thereof and (ii) adding a new paragraph
(c)thereto to read as follows:
"(c) If Borrower elects to extend the
Loans from the Revolving Loan Maturity Date to
the Term Loan Maturity Date as contemplated in
SECTION 4.02(A)(b), all obligations of the
Banks to make further Revolving Credit Loans
shall nonetheless cease as of the Revolving
Loan Maturity Date and, thereafter, all
amounts outstanding shall consist of term
loans and shall be repaid in accordance with
the provisions of SECTION 4.02 on or before
the Term Loan Maturity Date."
b. Section 1.05 of the Credit Agreement is
hereby amended by rewriting sub-section (v) of paragraph (b)
thereof to read as follows:
"mature on the Revolving Loan Maturity Date,
provided, if Borrower has elected to extend the Loan as
provided in SECTION 4.02(A)(b), said Notes shall
automatically be extended and shall thereafter mature on the
Term Loan Maturity Date . . ."
c. Section 1.09 of the Credit Agreement is hereby
amended by rewriting subsection (iv) of paragraph (a)
thereof to read as follows:
"no Interest Period shall extend beyond
the Revolving Loan Maturity Date unless
Borrower has elected to extend the Loan
pursuant to SECTION 4.02(A)(b), in which case
no Interest Period shall extend beyond the
Term Loan Maturity Date"
d. Section 2.01 of the Credit Agreement is
hereby amended by changing all references contained therein to
"Maturity Date" to "Revolving Loan Maturity Date."
e. Section 3.01(a) of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Section 3.01 FEES. (a) Borrower
agrees to pay to the Administrative Agent a facility
fee ("FACILITY FEE") based on Borrower's Rating, at the
rates set forth below, pro rata for the account of each
Non-Defaulting Bank, with respect to its Commitment in effect
from the Closing Date until payment in full of the Notes,
which Facility Fee, prior to the Revolving Loan Maturity
Date, shall be based upon the total amount of such Bank's
Commitment, regardless of what amount may actually be advanced
and outstanding and, subsequent thereto and until payment in full
of the Notes, shall be based upon the average daily balance of
the actual principal amounts outstanding during the quarterly
period then ending. Such Facility Fee shall be due and
payable in arrears on the first Business Day of each March,
June, September and December and on the date the Notes are
paid in full.
Rating A-/A3 BBB+/Baa1 BBB/Baa2 BBB-/Baa3 BB+/Ba1
Facility Fee .1% .125% .15% .2% .3%"
f. Section 3.03 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"3.03 TERMINATION OF COMMITMENTS. The Total Commitment shall
terminate on the Revolving Loan Maturity Date subject to the terms
of SECTION 4.02(A)(b)."
g. Section 4.02(A)(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"All outstanding principal and any accrued unpaid
interest shall be due and owing on the Revolving Loan
Maturity Date, provided, if no Default or Event of
Default shall be in existence Borrower may, at its option,
by giving written notice to the Administrative Agent no
later than five Business Days before the Revolving Loan
Maturity Date, extend the final maturity of the Loans
from the Revolving Loan Maturity Date to the Term Loan
Maturity Date. If Borrower makes such election,
Borrower shall make mandatory payments of principal on
the last Business Day of each February, May, August and
November following January 1, 2000 (i) equal to one-fourteenth
(1/14th) of the total outstanding principal balance of all
of the Revolving Loan Notes on the Revolving Loan Maturity
Date, and (ii) a final balance of all of the remaining
outstanding principal on the Term Loan Maturity Date.
Borrower's election to so extend shall constitute an
automatic extension of each of the Notes to the Term Loan
Maturity Date. All outstanding principal and all
accrued, unpaid interest on all Loans shall be repaid in
full on the Term Loan Maturity Date."
h. Section 8.08 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Section 8.08 DEBT TO CAPITALIZATION
Ratio. Borrower shall not permit the ratio of
its Consolidated Indebtedness to its
Consolidated Total Capitalization measured at
the end of each fiscal quarter, to be greater
at any time than the following ratio for the
periods indicated:
Through End of
Calendar Year 1998 All Other Periods
.50 to 1.0 .45 to 1.0"
i. The following defined terms are hereby amended in
Section 10 of the Credit Agreement in their appropriate
alphabetical order to read as follows:
(i) "'AMENDMENT CLOSING DATE' shall mean the date
that the First Amendment to Credit Agreement and Loan Documents
dated as of November 23, 1998, among Borrower, the Administrative
Agent and the Banks shall have become effective pursuant to
Section 4 thereof."
(ii) "'APPLICABLE EURODOLLAR MARGIN' shall mean the
following: prior to the Revolving Loan Maturity Date the
Applicable Eurodollar Margin shall be equal to the percentage
per annum set forth below opposite Borrower's applicable
Rating, effective as of the date such Rating is published or
announced:
RATING APPLICABLE
EURODOLLAR
MARGIN
A-/A3 .40%
BBB+/Baa1 .50%
BBB/Baa2 .60%
BBB-/Baa3 .80%
BB+/Ba1 .95%
Subsequent to the Revolving Loan Maturity Date and until
payment in full of the Obligations, the Applicable Eurodollar
Margin shall be equal to the percentage per annum set forth
below opposite Borrower's applicable Rating, effective as of
the date such Rating is published or announced:
APPLICABLE
EURODOLLAR
RATING MARGIN
A-/A3 .65%
BBB+/Baa1 .75%
BBB/Baa2 .85%
BBB-/Baa3 1.05%
BB+/Ba1 1.2%"
(iii) The definition of "Commitment Commission" is
hereby deleted. References in Section 9 to the Commitment
Commission shall henceforth refer to the Facility Fee.
(iv) The phrase "Maturity Date" in the definition of
"Disqualified Capital Stock" is deleted and replaced with the
phrase "Term Loan Maturity Date."
(v) "'FACILITY FEE' shall have the meaning set forth
in SECTION 3.01(a)."
(vi) The definition of "Maturity Date" is hereby deleted.
(vii) "'REVOLVING LOAN MATURITY DATE' shall mean 364
days after the Amendment Closing Date, unless accelerated
pursuant to SECTION 9."
(viii)"'TERM LOAN MATURITY DATE' shall mean the second
anniversary of the Revolving Loan Maturity Date, unless
accelerated pursuant to SECTION 9."
j. Section 12.12 of the Credit Agreement is hereby
amended by deleting the phrase "Maturity Date" contained in
subsection (i) thereof and replacing it with the phrase
"Revolving Loan Maturity Date or the Term Loan Maturity Date
. . ."
k. Annex I of the Credit is hereby deleted and
replaced with the Annex I attached hereto.
Section 3. RATIFICATION. The Borrower hereby ratifies
and confirms all of the Obligations under the Credit Agreement (as
amended hereby) and the Notes. All references to the "Credit
Agreement" shall mean the Credit Agreement as amended hereby and
as the same may be amended, supplemented, restated or otherwise
modified and in effect from time to time in the future.
Section 4. EFFECTIVENESS. The effectiveness of this
Amendment is subject to the condition precedent that the Administrative
Agent shall have received in form and substance reasonably satisfactory
to the Banks and in such number of counterparts as may be reasonably
requested by the Administrative Agent, this Amendment executed by the
Borrower and each of the Banks and the Borrower shall have paid all of
the Administrative Agent's reasonable costs and expenses (other than legal
fees and expenses, which shall be payable promptly after Borrower receives
an invoice from counsel to the Administrative Agent) incurred in
connection herewith.
Section 5. REPRESENTATIONS AND WARRANTIES. The Borrower
hereby represents and warrants to the Banks that (a) the execution,
delivery and performance of this Amendment has been duly
authorized by all requisite corporate action on the part of the
Borrower, (b) the Credit Agreement (as amended hereby)
constitutes a valid and legally binding agreement enforceable against the
Borrower in accordance with its terms except, as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity, (c) the
representations and warranties by the Borrower contained in the Credit
Agreement as amended hereby are true and correct on and as of the date
hereof in all material respects as though made as of the date hereof
unless such representation and warranty expressly indicates that it is
being made as of any specific date, in which case such representations
and warranties shall be true and correct in all material respects as of
such date, and except to the extent that such representations and
warranties are no longer true and correct due to any action or inaction
permitted or required to be taken under the Credit Documents by Borrower
or any Subsidiary, and (d) no Default or Event of Default exists under
the Credit Agreement (as amended hereby).
Section 6. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. FINAL AGREEMENT. THE CREDIT AGREEMENT (AS AMENDED
HEREBY) REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by its officers thereunto duly authorized as of the date first
above written.
ADDRESS: GLOBAL MARINE INC.
000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Telephone:(000) 000-0000 By: /S/W. XXXX XXXXX
Attention: W. Xxxx Xxxxx W. Xxxx Xxxxx
Vice President and Treasurer
BANKERS TRUST COMPANY, Individually
and as Administrative Agent
By: /S/XXXXXX X. XXXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxxx
Title:Principal
ABN AMRO BANK, N.V., HOUSTON
AGENCY, Individually and as
Syndication Agent
By: /S/XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /S/W. XXXXX XXXXXXX
Name: W. Xxxxx Xxxxxxx
Title: Group Vice President
ARGENTARIA-BANCO EXTERIOR DE ESPANA
NEW YORK BRANCH
By: /S/XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: General Manager
THE BANK OF NOVA SCOTIA
By: /S/F.C.H. XXXXX
Name: F.C.H. Xxxxx
Title: Senior Manager
Loan Operations
BANK OF TOKYO - MITSUBISHI, LTD.
By: /s/Xxxx X. XxXxxx
Name: Xxxx X. XxXxxx
Title: Vice President & Manager
CREDIT LYONNAIS, NEW YORK BRANCH
By: /S/PHILIPPE SOUSTRA
Name: Philippe Soustra
Title: Senior Vice President
DEN NORSKE BANK ASA, NEW YORK
BRANCH
By: /S/XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
By: /S/XXXXXXX XXXXXXXXX
Name: Xxxxxxx Xxxxxxxxx
Title: First Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY,
Individually and as Documentation
Agent
By: /S/XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Director
TORONTO DOMINION (TEXAS), INC.
By: /S/XXXXX XXXXXX
Name: Xxxxx Xxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /S/XXXXXXX XX XXXXXX
Name: Xxxxxxx Xx Xxxxxx
Title: Vice President
By: /S/XXXXXX XXX
Name: Xxxxxx Xxx
Title: Associate
ANNEX I
COMMITMENTS
BANK COMMITMENT
Bankers Trust Company $ 5,000,000
ABN AMRO Bank, N.V., Houston Agency $30,000,000
Argentaria-Banco Exterior de Espana New York Branch $ 5,000,000
The Bank of Nova Scotia $10,000,000
Bank of Tokyo-Mitsubishi, Ltd. $10,000,000
Credit Lyonnais, New York Branch $20,000,000
Den norske Bank ASA, New York Branch $15,000,000
Societe Generale, Southwest Agency $30,000,000
Toronto Dominion (Texas), Inc. $15,000,000
WestDeutsche Landesbank Girozentrale,
New York Branch $10,000,000
