EXHIBIT 10.5
SECOND AMENDMENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This Second Amendment to Credit Agreement and Loan
Documents (this "Amendment") dated as of April 23, 1999 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"), SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
and DEN NORSKE BANK ASA, NEW YORK BRANCH, as co-agents 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 Second Amended and Restated Credit Agreement dated as
of December 9, 1997 (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. a. Section 8.07 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"8.07 CASH INTEREST COVERAGE RATIO. Borrower shall
not permit the ratio of (a) Consolidated EBITDA for any four
consecutive complete fiscal quarters then last ended to (b)
Consolidated Cash Interest Expense of Borrower for such
period, commencing with the fiscal quarter ending June 30,
1999, to be less than the following ratio for the periods
indicated:
Through End of January 1, January 1, All
CALENDAR YEAR 2000 - 2000- Subsequent
1999 DECEMBER 31, DECEMBER 31, PERIODS
2.5 to 1.0 2.25 to 1.0 2.5 to 1.0 3.0 to 1.0"
b. 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, commencing with the quarter ending June
30, 1999, to be greater at any time than the following ratio
for the periods indicated:
Through End of All Other
CALENDER YEAR SUBSEQUENT
2000 PERIODS
.50 to 1.0 .45 to 1.0 "
c. The defined term "Change of Control" is hereby
amended in Section 10 of the Credit Agreement by deleting the
reference to "35%" contained therein and replacing it with "50%".
d. The pricing grid contained in the definition of
"Applicable Eurodollar Margin" is hereby deleted and the following
substituted therefor:
APPLICABLE
EURODOLLAR
RATING MARGIN
A- / A3 .375%
BBB+ / Baa1 .50%
BBB / Xxx0 .000%
XXX- / Xxx0 .75%
BB+ / Ba1 1.00%
e. Annex I of the Credit Agreement 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: (a) (i) 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 constituting the Required Banks and (ii) an amendment fee of
.125% of the Commitment of each Bank that has executed this
Amendment prior to April 23, 1999, and in regard to which the Agent
has notified the Borrower of such execution, and (b) 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
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 By: /s/ W. Xxxx Xxxxx
Telecopy: (000) 000-0000 W. Xxxx Xxxxx
Telephone: (000) 000-0000 Senior Vice President - Chief
Attention: W. Xxxx Xxxxx Financial Officer 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
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
ARGENTARIA, CAJA POSTAL Y BANCO
HIPOTECARIO, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: General Manager
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Xxxxx
Name: M. D. Xxxxx
Title:Agent Operations
THE BANK OF TOKYO - MITSUBISHI,
LTD.
By: /s/ Xxxx X. XxXxxx
Name: Xxxx X. XxXxxx
Title: Vice President & Manager
CHRISTIANIA BANK og KREDITKASSE ASA
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Hans Chr. Kjelsrud
Name: Hans Chr. Kjelsrud
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Pascal Poupelle
Name: Palcal Poupelle
Title: Executive Vice President
DEN NORSKE BANK ASA, NEW YORK
BRANCH, Individually and as Co-
Agent
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: First Vice President
By: /s/ Chr. Xxxxxx Xxxxxx
Name: Chr. Xxxxxx Xxxxxx
Title: Assistant Vice President
GULF INTERNATIONAL BANK B.S.C.
By: /s/ Abdel-Fattah Tahoun
Name: Absel-Fattah Tahoun
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President-MGT
SKANDINAVISKA ENSKILDA XXXXXX XX
(PUBL), Individually and as Co-Agent
By: /s/ Jan Sjolig
Name: Jan Sjolig
Title:
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 X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Associate
ANNEX I
Second Amended and Restated Credit Agreement dated as of December 9, 1997
COMMITMENTS
BANK COMMITMENT
Bankers Trust Company $46,916,666.67
ABN AMRO Bank, N.V., Houston Agency $10,000,000.00
Argentaria, Caja Postal y Banco Hipotecario, $ 5,000,000.00
New York Branch
The Bank of Nova Scotia $15,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. $15,000,000.00
Credit Lyonnais New York Branch $10,000,000.00
Den norske Bank ASA, New York Branch $21,000,000.00
Societe Generale, Southwest Agency $33,333,333.33
Toronto Dominion (Texas), Inc. $18,750,000.00
WestDeutsche Landesbank Girozentrale,
New York Branch $10,000,000.00
Skandinaviska Enskilda Xxxxxx Xx (publ) $25,000,000.00
Christiania Bank og Kreditasse ASA New
York Branch $10,000,000.00
Xxxxxx Guaranty Trust Company of New York $10,000,000.00
Gulf International Bank B.S.C. $10,000,000.00
Total $240,000,000.00
