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EXHIBIT 99.4
CREDIT AGREEMENT
AMONG
GLOBAL MARINE INC.
VARIOUS LENDING INSTITUTIONS,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT,
AND
ABN AMRO BANK, N.V., HOUSTON AGENCY
AS SYNDICATION AGENT,
AND
SOCIETE GENERALE, SOUTHWEST AGENCY
AS DOCUMENTATION AGENT
$150,000,000.00 REVOLVING CREDIT LOAN
DATED AS OF JANUARY 29, 1998
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TABLE OF CONTENTS
SECTION 1 AMOUNT AND TERMS OF CREDIT .............................................................1
1.01 Commitment..............................................................................1
1.02 Minimum Borrowing Amounts, etc..........................................................1
1.03 Notice of Borrowing.....................................................................2
1.04 Disbursement of Funds...................................................................2
1.05 Notes...................................................................................3
1.06 Conversions.............................................................................3
1.07 Pro Rata Borrowings.....................................................................4
1.08 Interest................................................................................4
1.09 Interest Periods........................................................................5
1.10 Increased Costs, Illegality, etc........................................................5
1.11 Compensation............................................................................7
1.12 Change of Lending Office................................................................8
1.13 Replacement of Banks....................................................................8
SECTION 2 LETTERS OF CREDIT .....................................................................10
2.01 Letters of Credit......................................................................10
2.02 Minimum Stated Amount..................................................................10
2.03 Letter of Credit Requests; Request for Issuance of Letter of Credit....................11
2.04 Agreement to Repay Letter of Credit Payments...........................................11
2.05 Letter of Credit Participations........................................................12
2.06 Increased Costs........................................................................14
2.07 Indemnities............................................................................14
SECTION 3 FEES; COMMITMENTS .....................................................................16
3.01 Fees...................................................................................16
3.02 Voluntary Reduction of Commitments.....................................................16
3.03 Termination of Commitments.............................................................17
SECTION 4 PAYMENTS ..............................................................................18
4.01 Voluntary Prepayments..................................................................18
4.02 Mandatory Repayments...................................................................18
4.03 Method and Place of Payment............................................................20
4.04 Net Payments...........................................................................20
SECTION 5 CONDITIONS PRECEDENT ..................................................................23
5.01 Consent of Banks.......................................................................23
5.02 Execution of Notes.....................................................................23
5.03 No Default; Representations and Warranties.............................................23
5.04 Officer's Certificate..................................................................23
5.05 Opinions of Counsel....................................................................23
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5.06 Corporate Proceedings..................................................................23
5.07 Litigation.............................................................................24
5.08 Approvals..............................................................................24
5.09 Fees...................................................................................24
5.10 Margin Rules...........................................................................24
5.11 Notice of Borrowing....................................................................24
5.12 Fulfillment of Conditions..............................................................24
SECTION 6 REPRESENTATIONS, WARRANTIES AND AGREEMENTS.............................................26
6.01 Status.................................................................................26
6.02 Power and Authority....................................................................26
6.03 No Violation...........................................................................26
6.04 Litigation.............................................................................27
6.05 Use of Proceeds; Margin Regulations....................................................27
6.06 Governmental Approvals.................................................................28
6.07 Investment Company Act.................................................................28
6.08 Public Utility Holding Company Act.....................................................28
6.09 True and Complete Disclosure...........................................................28
6.10 Financial Condition; Financial Statements..............................................29
6.11 Tax Returns and Payments...............................................................29
6.12 Employee Benefit Plans.................................................................29
6.13 Subsidiaries...........................................................................30
6.14 Patents, etc...........................................................................30
6.15 Environmental Matters..................................................................31
6.16 Properties.............................................................................32
6.17 Labor Relations........................................................................32
6.18 Insurance..............................................................................32
SECTION 7 AFFIRMATIVE COVENANTS .................................................................33
7.01 Information Covenants..................................................................33
7.02 Books, Records and Inspections.........................................................34
7.03 Maintenance of Insurance...............................................................34
7.04 Payment of Taxes.......................................................................35
7.05 Consolidated Corporate Franchises......................................................35
7.06 Compliance with Statutes, etc..........................................................35
7.07 Good Repair............................................................................35
7.08 Use of Proceeds........................................................................35
7.09 ERISA..................................................................................36
SECTION 8 NEGATIVE COVENANTS.....................................................................37
8.01 Changes in Business....................................................................37
8.02 Consolidation, Merger, Sale of Assets, etc.............................................37
8.03 Indebtedness and Liens.................................................................37
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8.04 Restrictions on Subsidiaries...........................................................38
8.05 Transactions with Affiliates...........................................................39
8.06 Limitation on Sale/Leaseback Transactions..............................................39
8.07 Cash Interest Coverage Ratio...........................................................40
8.08 Debt to Capitalization Ratio...........................................................40
8.09 Tangible Net Worth.....................................................................40
SECTION 9 EVENTS OF DEFAULT .....................................................................41
9.01 Payments...............................................................................41
9.02 Representations, etc...................................................................41
9.03 Covenants..............................................................................41
9.04 Default Under Other Agreements.........................................................41
9.05 Bankruptcy, etc........................................................................42
9.06 Default Under Other Senior Indebtedness................................................42
9.07 Judgments..............................................................................42
9.08 Change of Control......................................................................42
9.09 Employee Benefit Plans.................................................................42
SECTION 10 DEFINITIONS............................................................................44
SECTION 11 THE AGENTS.............................................................................63
11.01 Appointment............................................................................63
11.02 Nature of Duties.......................................................................63
11.03 Lack of Reliance on the Agents.........................................................63
11.04 Certain Rights of the Administrative Agent.............................................64
11.05 Reliance...............................................................................64
11.06 Indemnification........................................................................64
11.07 The Agents in Their Individual Capacity................................................64
11.08 Holders................................................................................65
11.09 Resignation by the Administrative Agent................................................65
SECTION 12 MISCELLANEOUS..........................................................................66
12.01 Indemnification, Payment of Expenses, etc..............................................66
12.02 Right of Setoff........................................................................67
12.03 Notices................................................................................67
12.04 Benefit of Agreement...................................................................67
12.05 No Waiver; Remedies Cumulative.........................................................69
12.06 Payments Pro Rata......................................................................69
12.07 Calculations; Computations.............................................................70
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.................70
12.09 Counterparts...........................................................................71
12.10 Effectiveness..........................................................................71
12.11 Headings Descriptive...................................................................71
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12.12 Amendment or Waiver....................................................................71
12.13 Survival...............................................................................72
12.14 Domicile of Loans......................................................................72
12.15 Confidentiality........................................................................72
12.16 Registry...............................................................................73
12.17 Intentionally Omitted .................................................................73
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Annex I Commitments
Annex II Bank Addresses
Exhibit 1.03 Form of Notice of Borrowing
Exhibit 1.05(a) Form of Note
Exhibit 2.03 Form of Letter of Credit Request
Exhibit 4.04(b)(ii) Form of Section 4.04(b)(ii) Certificate
Exhibit 5.05-A Form of Opinion of Xxxxx & Xxxxx, L.L.P.
Exhibit 5.05-B Form of Opinion of Xxxxx X. XxXxxxxxx
Exhibit 5.05-C Form of Opinion of Xxxxxxx & Xxxxx L.L.P.
Exhibit 5.06 Form of Officers' Certificate
Annex 6.13 Subsidiaries
Annex 6.16(b) Offshore Drilling Rigs Owned or Leased
Exhibit 7.01(c) Form of Compliance Certificate
Exhibit 8.04(b) Form of Guaranty
Exhibit 10.01A Form of Assignment and Assumption Agreement
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THIS CREDIT AGREEMENT (this "Agreement"), is entered into as
of January 29, 1998, among GLOBAL MARINE INC. ("Borrower"), a Delaware
corporation, the lending institutions listed on Annex 1.1 hereto (each a "Bank"
and, collectively, the "Banks"), BANKERS TRUST COMPANY, as Administrative Agent
(the "Administrative Agent"), ABN AMRO BANK, N.V., HOUSTON AGENCY, as
Syndication Agent (the "Syndication Agent") and SOCIETE GENERALE, SOUTHWEST
AGENCY, as Documentation Agent (the "Documentation Agent," and together with the
Administrative Agent, the Syndication Agent and any Co-Agents, the "Agents") and
Bankers Trust Company as Letter of Credit Issuer, all as provided herein. Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereto agree as follows:
SECTION 1
AMOUNT AND TERMS OF CREDIT
1.01 Commitment. (a) Subject to and upon the terms and
conditions herein set forth, each Bank severally agrees to make a revolving
credit loan or loans (each a "Loan" or "Revolving Credit Loan") under the
Facility to Borrower, which Revolving Credit Loans (i) shall be made at any time
and from time to time on and after the Initial Borrowing Date and prior to the
Maturity Date, (ii) except as hereinafter provided, may, at the option of
Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans; provided, however, that all Revolving Credit Loans made as
part of the same Borrowing shall, unless otherwise specifically provided herein,
consist of Loans of the same Type, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, (iv) together with all other Loans and
all Letter of Credit Outstandings, shall not exceed in the aggregate for all
Banks at any time outstanding, the Total Commitment and (v) shall not exceed for
any Bank at any time outstanding the aggregate principal amount which, when
combined with the aggregate outstanding principal amount of all other Loans of
such Bank and with such Bank's Adjusted Percentage of the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Loans) at such time, equals (A) if such Bank is a Non- Defaulting Bank, the
Adjusted Commitment of such Bank at such time and (B) if such Bank is a
Defaulting Bank, the Commitment of such Bank at such time.
(b) In no event shall the total of all Loans and Letter of
Credit Outstandings hereunder exceed the Total Commitment.
1.02 Minimum Borrowing Amounts, etc. The aggregate
principal amount of each Borrowing shall not be less than the Minimum Borrowing
Amount for the Loans constituting such
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Borrowing. More than one Borrowing may be incurred on any day; provided,
however, that at no time shall there be outstanding more than ten Borrowings of
Eurodollar Loans.
1.03 Notice of Borrowing. Whenever Borrower desires to incur
Revolving Credit Loans under the Facility, it shall give the Administrative
Agent at its Notice Office, prior to 11:00 a.m. (New York time), at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Eurodollar Loans and at least one Business Day's
prior written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing of Base Rate Loans to be made hereunder. Each such written notice
(each a "Notice of Borrowing") shall be in the form of Exhibit 1.03(a) hereto
and shall be irrevocable and shall specify (a) the aggregate principal amount of
the Loans to be made pursuant to such Borrowing, (b) the date of Borrowing
(which shall be a Business Day) and (c) whether the respective Borrowing shall
consist of Base Rate Loans or (to the extent permitted) Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Bank written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters covered by the Notice of
Borrowing.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New
York time) on the date specified in each Notice of Borrowing, each Bank will
make available its pro rata share of each Borrowing requested to be made on such
date in the manner provided below. All such amounts shall be made available to
the Administrative Agent in Dollars and immediately available funds at the
Payment Office, and the Administrative Agent promptly will make available to
Borrower by depositing to its account at the Payment Office the aggregate of the
amounts so made available in Dollars and immediately available funds. Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Administrative
Agent its portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Bank and the Administrative Agent has made available same to
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly (and in any event within three Business
Days from the date the Administrative Agent made such funds available to
Borrower) notify Borrower, and Borrower shall (within two Business Days of
receiving such demand) pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover on demand from
such Bank or Borrower, as the case may be, interest on such corresponding amount
in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to Borrower to the date such corresponding
amount is recovered by the Administrative Agent, at a rate per annum equal to
(x) if paid by such Bank, the
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Federal Funds Effective Rate or (y) if paid by Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08, for the respective
Loans.
(b) Nothing herein shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to prejudice any rights
which Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.05 Notes. (a) Borrower's obligation to pay the Loans made
to it by each Bank shall be evidenced by a promissory note substantially in the
form of Exhibit 1.05(a) hereto with blanks appropriately completed in
conformity herewith (each a "Note" and, collectively, the "Notes").
(b) The Note issued to each Bank shall (i) be executed by
Borrower, (ii) be payable to the order of such Bank and be dated the Closing
Date, (iii) be in a stated principal amount equal to the Commitment of such Bank
on such date, (iv) be payable in the aggregate unpaid principal amount of the
Loans evidenced thereby, (v) mature on the Maturity Date, (vi) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vii) be
subject to mandatory prepayment as provided in Section 4.02 and (viii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) Each Bank will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect Borrower's obligations in respect of such Loans.
1.06 Conversions. Borrower shall have the option to convert
on any Business Day all or a portion (which portion shall be at least equal to
the applicable Minimum Borrowing Amount) of the outstanding principal amount of
the Loans owing pursuant to the Facility into a Borrowing or Borrowings
pursuant to the Facility of another Type of Loan; provided, however, that (a)
if any Eurodollar Loan is converted into Base Rate Loans other than on the last
day of an Interest Period applicable thereto Borrower shall pay to the Banks
all amounts related to such conversion that are due pursuant to Section 1.11,
(b) no partial conversion of a Borrowing of Eurodollar Loans shall reduce the
outstanding principal amount of the Eurodollar Loans made pursuant to such
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (c) no
Base Rate Loans may be converted into Eurodollar Loans at any time when a
Default or Event of Default is in existence on the date of the conversion if
the Administrative Agent or the Required Banks have reasonably determined that
such a conversion would be disadvantageous to the Banks and (d) Borrowings of
Eurodollar Loans resulting from this Section 1.06 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by Borrower by
giving the Administrative Agent at its Notice Office, prior to 12:00 Noon (New
York time), at least three Business Days' (or one Business Day's, in the case
of a conversion into Base Rate Loans) prior written notice (or telephonic
notice promptly confirmed in writing) (each a "Notice of Conversion")
specifying the
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Loans to be so converted, the Type of Loans to be converted into and, if to be
converted into Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Revolving Credit Loans under
this Agreement shall be made by the Banks pro rata on the basis of their
Commitments. It is understood that no Bank shall be responsible for any default
by any other Bank in its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Bank to fulfill its commitments
hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest at a rate per annum which shall be equal to the
sum of the Base Rate in effect from time to time, plus the Applicable Base Rate
Margin.
(b) The unpaid principal amount of each Eurodollar Loan that
is a Revolving Credit Loan shall bear interest at a rate per annum which shall
be equal to the sum of the relevant Eurodollar Rate, plus the Applicable
Eurodollar Margin in effect from time to time.
(c) All overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan and any other overdue amount
payable hereunder shall bear interest at a rate per annum equal to the greater
of (x) 2% per annum in excess of the rate otherwise applicable to Base Rate
Loans from time to time or (y) the rate which is 2% in excess of the rate
(including any applicable margin) then borne by such Loans, in each case with
such interest payable on demand; provided, however, that no Loan shall bear
interest after maturity (whether by acceleration or otherwise) at a rate per
annum less than 2% plus the rate of interest applicable thereto at maturity;
provided, further, however, that in no event shall any amount payable hereunder
bear interest in excess of the maximum amount permitted by applicable law.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof (whether by
acceleration or otherwise) and shall be payable (i) in respect of each Base Rate
Loan, quarterly in arrears on the first Business Day of each March, June,
September and December, (ii) in respect of each Eurodollar Loan, in arrears on
the last day of each Interest Period applicable thereto and, in the case of an
Interest Period of six months, on the date occurring three months after the
first day of such Interest Period and (iii) in respect of each Loan, on any
prepayment or conversion (other than the prepayment and conversion of Base Rate
Loans) (on the amount prepaid or converted), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
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(f) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans for any Interest Period, shall
promptly notify Borrower and the Banks thereof.
1.09 Interest Periods. (a) At the time Borrower gives a
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans, in the case of the initial
Interest Period applicable thereto, or prior to 12:00 Noon (New York time) on
the third Business Day prior to the expiration of an Interest Period applicable
to a Borrowing of Eurodollar Loans, Borrower shall have the right to elect by
giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of Borrower, be a one, two, three or six
month period. Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing (including the
date of any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month in which such Interest
Period ends, such Interest Period shall end on the last Business Day of such
calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(iv) no Interest Period shall extend beyond the Maturity
Date; and
(v) no Interest Period may be elected at any time when a
Default or Event of Default is then in existence if the Administrative Agent or
the Required Banks have reasonably determined that such an election at such time
would be disadvantageous to the Banks.
(b) If upon the third Business Day prior to the expiration
of any Interest Period, Borrower has failed to (or may not) elect a new Interest
Period to be applicable to the respective Borrowing of Eurodollar Loans as
provided above, Borrower shall be deemed to have elected to convert such
Borrowing into a Borrowing of Base Rate Loans effective as of the expiration
date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the case
of clauses (ii) and (iii) below, any Bank shall
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have reasonably determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market, adequate and fair means do
not exist for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in the rate
or basis of net income taxes, franchise taxes, or similar charges) because of
(x) any change since the date of this Agreement in any applicable law,
governmental rule, regulation, guideline or order (or in the interpretation or
administration thereof and including the adoption of any new law or governmental
rule, regulation, guideline or order) (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the computation
of the Eurodollar Rate) and/or (y) other circumstances occurring after the date
of this Agreement and affecting the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Bank in good faith
with any law, governmental rule, regulation, guideline (or would conflict with
any such governmental rule, regulation, guideline or order not having the force
of law but with which such Bank customarily complies even though the failure to
comply therewith would not be unlawful);
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within ten Business Days of
the date on which such event no longer exists, give notice (by telephone
confirmed in writing) to Borrower and, in the case of clauses (ii) and (iii)
above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies Borrower and
the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, which notice the Administrative Agent
agrees to promptly deliver to Borrower as soon as practicable after becoming
aware of the absence of such circumstances, and any Notice of Borrowing or
Notice of Conversion given by Borrower with respect to Eurodollar Loans which
have not yet been incurred shall be deemed rescinded by Borrower, (y) in the
case of clause (ii) above, Borrower shall, subject to Section 1.12(b) (to the
extent applicable), pay to such Bank, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank in its reasonable discretion
shall determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing the basis for the calculation
thereof, submitted to Borrower
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by such Bank shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) and (z) in the case of clause (iii) above, Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), Borrower may (and in
the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii),
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii),
or (ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Administrative Agent, require the affected Bank to
convert each such Eurodollar Loan into a Base Rate Loan; provided, however, that
if more than one Bank is affected at any time, then all affected Banks must be
treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have reasonably determined that after
the date of this Agreement, the adoption or effectiveness of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law but with
which such Bank customarily complies even though the failure to comply therewith
would not be unlawful) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on such Bank's
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Bank could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Bank's
policies with respect to capital adequacy), then from time to time, within 15
days after demand by such Bank (with a copy to the Administrative Agent),
Borrower shall, subject to Section 1.12(b) (to the extent applicable), pay to
such Bank such additional amount or amounts as will compensate such Bank for
such reduction. Each Bank, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.10(c), will give prompt
written notice thereof to Borrower, which notice shall set forth the basis of
the calculation of such additional amounts, although, subject to Section
1.12(b), the failure to give any such notice shall not release or diminish any
of Borrower's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.
1.11 Compensation. Borrower shall compensate each Bank, upon
its written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding in any event the loss of anticipated
profits or other consequential damages) which such Bank may sustain: (a) if for
any reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion (whether or not withdrawn by
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Borrower or deemed withdrawn pursuant to Section 1.10(a)); (b) if any
prepayment, repayment or conversion of any of its Eurodollar Loans occurs on a
date which is not the last day of an Interest Period applicable thereto; (c) if
any prepayment of any of its Eurodollar Loans is not made on any date specified
in a notice of prepayment given by Borrower; or (d) as a consequence of (x) any
other default by Borrower to repay its Eurodollar Loans when required by the
terms of this Agreement or (y) an election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. (a) Each Bank agrees that,
upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will,
if requested by Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loan,
Letters of Credit or Commitments affected by such event; provided, however,
that such designation is made on such terms that such Bank and its lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of Borrower or the right of any Bank provided in any of Sections
1.10, 2.06 or 4.04.
(b) Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by any of Sections 1.10, 1.11, 2.06
or 4.04 is given by any Bank more than 180 days after the occurrence of the
event giving rise to the additional costs of the type described in such Section,
such Bank shall not be entitled to compensation under any of Sections 1.10,
1.11, 2.06 or 4.04 for any amounts incurred or accruing prior to 180 days prior
to the giving of such notice to Borrower.
1.13 Replacement of Banks. (a) Upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 2.06 or Section 4.04 with respect to any Bank which results in
such Bank charging to Borrower increased costs in excess of those being
generally charged by the other Banks or becoming incapable of making Eurodollar
Loans, (b) if a Bank becomes a Defaulting Bank and/or (c) as provided in Section
12.12(b), in the case of a refusal by a Bank to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has been
approved by the Required Banks, Borrower shall have the right, if no Default or
Event of Default then exists, to replace such Bank (the "Replaced Bank") with
one or more other Eligible Transferee or Eligible Transferees reasonably
acceptable to the Administrative Agent, none of which Eligible Transferees shall
constitute a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank"); provided, however, that (i) at the time of any replacement
pursuant to this Section 1.13, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 12.04(b) (and with all
fees payable pursuant to said Section 12.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in Letters
of Credit by, the Replaced Bank and, in connection therewith, shall pay to (x)
the Replaced Bank in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Bank, (B) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank,
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together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Bank pursuant to Section 3.01, and (y) the Letter of Credit Issuer an
amount equal to such Replaced Bank's Percentage of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank, and (ii) all obligations of Borrower
owing to the Replaced Bank (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement. Upon the execution of the respective
Assignment and Assumption Agreements, the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of a Note executed by Borrower, the Replacement
Bank shall become a Bank hereunder and the Replaced Bank shall cease to
constitute a Bank hereunder, except with respect to indemnification provisions
applicable to the Replaced Bank under this Agreement, which shall survive as to
such Replaced Bank.
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SECTION 2
LETTERS OF CREDIT
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, Borrower may request a Letter of Credit Issuer to
issue, at any time and from time to time on and after the Initial Borrowing Date
and prior to the Maturity Date, and subject to and upon the terms and conditions
herein set forth, such Letter of Credit Issuer agrees to issue from time to
time, (x) for the account of Borrower and for the benefit of any holder (or any
trustee, agent or other similar representative for any such holders) of L/C
Supportable Obligations of Borrower or any Subsidiary, an irrevocable sight
standby letter of credit, in a form customarily used by such Letter of Credit
Issuer or in such other form as has been approved by such Letter of Credit
Issuer (each such standby letter of credit, a "Standby Letter of Credit") in
support of such L/C Supportable Obligations and/or (y) for the account of
Borrower and for the benefit of sellers of goods or materials or providers of
services to Borrower or any Subsidiary, an irrevocable sight letter of credit in
a form customarily used by such Letter of Credit Issuer or in such other form as
has been approved by such Letter of Credit Issuer (each such letter of credit, a
"Trade Letter of Credit", and each such Trade Letter of Credit and each Standby
Letter of Credit, a "Letter of Credit") in support of commercial transactions of
Borrower or any Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed the lesser of (x) $100,000,000.00 or (y) when added to the aggregate
principal amount of all Loans made by Non-Defaulting Banks then outstanding, the
Adjusted Total Commitment at such time; (ii) each Standby Letter of Credit shall
have an expiry date occurring not later than one year after such Standby Letter
of Credit's date of issuance although any Standby Letter of Credit may be
extendible for successive periods of up to 12 months, but not beyond the
Business Day next preceding the Maturity Date, on terms reasonably acceptable to
the respective Letter of Credit Issuer and in no event shall any Standby Letter
of Credit have an expiry date occurring later than the Business Day immediately
preceding the Maturity Date;(iii) each Letter of Credit shall be denominated in
Dollars; and (iv) each Trade Letter of Credit shall have an expiry date
occurring not later than the earlier of (x) the 30th day prior to the Maturity
Date and (y) the date which is 180 days from the date of issuance of such Trade
Letter of Credit, on terms acceptable to the respective Letter of Credit Issuer.
(c) To the extent that any provision of any application for
any Letter of Credit is inconsistent with or in addition to the terms of this
Agreement, the terms of this Agreement shall control.
2.02 Minimum Stated Amount. The initial Stated Amount of each
Letter of Credit shall be not less than $10,000 or such lesser amount reasonably
acceptable to the respective Letter of Credit Issuer.
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2.03 Letter of Credit Requests; Request for Issuance of
Letter of Credit. (a) Whenever it desires that a Letter of Credit be issued,
Borrower shall give the Administrative Agent and the respective Letter of
Credit Issuer written notice (including by way of telecopier) in the form of
Exhibit 2.03 hereto prior to 1:00 P.M. (New York time) at least one Business
Day (or such shorter period as may be acceptable to such Letter of Credit
Issuer) prior to the proposed date of issuance (which shall be a Business Day)
(each a "Letter of Credit Request"), which Letter of Credit Request shall
include any documents that such Letter of Credit Issuer customarily requires in
connection therewith.
(b) In the case of Standby Letters of Credit, the Letter of
Credit Issuer shall, without cost to Borrower, promptly after the issuance of or
amendment to any such Standby Letter of Credit, give the Administrative Agent,
each Bank and Borrower written notice of such issuance or amendment accompanied
by a copy of such issuance or amendment. In the case of Trade Letters of Credit,
the Letter of Credit Issuer will furnish the Administrative Agent, by facsimile
transmission, promptly on the first Business Day of each week a report of its
daily aggregate Letter of Credit Outstandings with respect to Trade Letters of
Credit for the previous week. The Administrative Agent shall deliver to each
Bank upon each calendar month end and upon each Letter of Credit fee payment a
report setting forth for such period the daily aggregate Stated Amount available
to be drawn under Trade Letters of Credit issued by all Letter of Credit Issuers
during such period.
2.04 Agreement to Repay Letter of Credit Payments. (a)
Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making
payment to the Administrative Agent at the Payment Office, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing")
within one Business Day of the date on which Borrower is notified by such Letter
of Credit Issuer of such payment or disbursement with interest on the amount so
paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed
prior to 1:00 P.M. (New York time) on the date of such payment or disbursement,
from and including the date paid or disbursed to but not including the date such
Letter of Credit Issuer is reimbursed therefor at a rate per annum which shall
be equal to the sum of the Base Rate as in effect from time to time plus the
Applicable Base Rate Margin (plus an additional 2% per annum if not reimbursed
by the fourth Business Day after the date of such notice of payment or
disbursement), such interest also to be payable on demand.
(b) Borrower's obligation under this Section 2.04 to
reimburse the respective Letter of Credit Issuer with respect to Unpaid
Drawings (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which Borrower may have or have had against
such Letter of Credit Issuer, the Administrative Agent or any Bank, including,
without limitation, any defense based upon the failure of any drawing under a
Letter of Credit to conform to the terms of the Letter of Credit (other than
the failure of the respective Letter of Credit Issuer to determine that any
documents required to be delivered under such Letter of Credit have been
delivered and that they substantially comply on their face with the
requirements of such Letter of Credit) or any
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non-application or misapplication by the beneficiary of the proceeds of such
drawing; provided, however, that Borrower shall not be obligated to reimburse
any Letter of Credit Issuer for any wrongful payment made by such Letter of
Credit Issuer under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer as determined by a court of competent jurisdiction.
2.05 Letter of Credit Participations. (a) Immediately upon
the issuance by any Letter of Credit Issuer of any Letter of Credit, such
Letter of Credit Issuer shall be deemed to have sold and transferred to each
other Bank, and each such Bank (each a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Bank's Adjusted Percentage, in such Letter
of Credit, each substitute letter of credit, each drawing made thereunder and
the obligations of Borrower under this Agreement with respect thereto (although
the Letter of Credit Fee shall be payable directly to the Administrative Agent
for the account of the Banks as provided in Section 3.01(b) and the
Participants shall have no right to receive any portion of any Facing Fees) and
any security therefor or guaranty pertaining thereto. Upon any change in the
Commitments or Adjusted Percentages of the Banks pursuant to Section 12.04(b)
or upon a Bank Default, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.05 to reflect the
new Adjusted Percentages of the assigning and assignee Bank or of all Banks, as
the case may be.
(b) In determining whether to pay under any Letter of
Credit, the respective Letter of Credit Issuer shall not have any obligation
relative to the Participants other than to determine that any documents
required to be delivered under such Letter of Credit have been delivered and
that they substantially comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by any Letter of
Credit Issuer under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct as determined
by a court of competent jurisdiction, shall not create for such Letter of
Credit Issuer any resulting liability to the Participants.
(c) In the event that the respective Letter of Credit
Issuer makes any payment under any Letter of Credit and Borrower shall not have
reimbursed such amount in full to such Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's Adjusted Percentage of such
payment in Dollars and in same day funds; provided, however, that no
Participant shall be obligated to pay to the Administrative Agent its Adjusted
Percentage of such unreimbursed amount for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer. If the Administrative Agent so notifies any
Participant required to fund an Unpaid Drawing under a Letter of Credit prior
to 12:00 Noon (New York time) on any Business Day, such
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Participant shall make available to the Administrative Agent for the account of
the respective Letter of Credit Issuer such Participant's Adjusted Percentage of
the amount of such payment on such Business Day in same day funds. If and to the
extent such Participant shall not have so made its Adjusted Percentage of the
amount of such Unpaid Drawing available to the Administrative Agent for the
account of such Letter of Credit Issuer, such Participant agrees to pay to the
Administrative Agent for the account of such Letter of Credit Issuer, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of such Letter of Credit Issuer at the overnight Federal Funds Effective
Rate. The failure of any Participant to make available to the Administrative
Agent for the account of the respective Letter of Credit Issuer its Adjusted
Percentage of any Unpaid Drawing under any Letter of Credit shall not relieve
any other Participant of its obligation hereunder to make available to the
Administrative Agent for the account of such respective Letter of Credit Issuer
its Adjusted Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Administrative Agent
for the account of such Letter of Credit Issuer such other Participant's
Adjusted Percentage of any such payment.
(d) Whenever the respective Letter of Credit Issuer
receives a payment of a reimbursement obligation as to which the Administrative
Agent has received for the account of such Letter of Credit Issuer any payments
from the Participants pursuant to clause (c) above, such Letter of Credit
Issuer shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each Participant which has paid its Adjusted Percentage
thereof, in Dollars and in same day funds, an amount equal to such
Participant's Adjusted Percentage of the principal amount thereof and interest
thereon accruing at the overnight Federal Funds Effective Rate after the
purchase of the respective participations.
(e) The obligations of the Participants to make payments to
the Administrative Agent for the account of the respective Letter of Credit
Issuer with respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever (provided, however, that no Participant shall be required to make
payments resulting from such Letter of Credit Issuer's gross negligence or
willful misconduct) and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for whom
any such transferee may be acting), the Administrative Agent, the respective
Letter of Credit Issuer, any Bank or other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated herein or
any unrelated transactions
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(including any underlying transaction between Borrower and the beneficiary
named in any such Letter of Credit);
(iii) any draft, certificate or other document presented
under the Letter of Credit proving to be forged, fraudulent, or invalid in any
respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.06 Increased Costs. If at any time after the date of the
Agreement, the adoption or effectiveness of any new applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof or any existing law, rule or regulation by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the respective Letter
of Credit Issuer or any Bank with any request or directive (whether or not
having the force of law but with which such Bank customarily complies even
though the failure to comply therewith would not be unlawful) by any such
authority, central bank or comparable agency shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against Letters of Credit issued by such Letter of Credit Issuer or such Bank's
participation therein, or (ii) shall impose on such Letter of Credit Issuer or
any Bank any other conditions affecting this Agreement, any Letter of Credit or
such Bank's participation therein; and the result of any of the foregoing is to
increase the cost to such Letter of Credit Issuer or such Bank of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount of
any sum received or receivable by such Letter of Credit Issuer or such Bank
hereunder (other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate or basis of
net income taxes, franchise taxes or similar charges), then, upon demand to
Borrower by such Letter of Credit Issuer or such Bank (a copy of which notice
shall be sent by such Letter of Credit Issuer or such Bank to the Administrative
Agent), Borrower shall, subject to Section 1.12(b) (to the extent applicable),
pay to such Letter of Credit Issuer or such Bank such additional amount or
amounts as will compensate such Letter of Credit Issuer or such Bank for such
increased cost or reduction. A certificate submitted to Borrower by the
respective Letter of Credit Issuer or such Bank, as the case may be (a copy of
which certificate shall be sent by such Letter of Credit Issuer or such Bank to
the Administrative Agent), setting forth the basis for the determination of such
additional amount or amounts necessary to compensate such Letter of Credit
Issuer or such Bank as aforesaid shall be conclusive and binding on Borrower
absent manifest error, although the failure to deliver any such certificate
shall not, subject to Section 1.12(b), release or diminish any of Borrower's
obligations to pay additional amounts pursuant to this Section 2.06 upon the
subsequent receipt thereof.
2.07 Indemnities. Borrower hereby agrees to reimburse and
indemnify the respective Letter of Credit Issuer for and against any and all
liabilities, obligations, losses, damages,
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penalties, claims, actions, judgments, suits, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by such Letter of Credit Issuer in performing its respective duties in
any way relating to or arising out of its issuance of Letters of Credit;
provided, however, that Borrower shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Letter of Credit Issuer's
gross negligence or willful misconduct or the failure of the respective Letter
of Credit Issuer to determine that any documents required to be delivered under
such Letter of Credit have been delivered and that they substantially comply on
their face with the requirements of such Letter of Credit. To the extent the
respective Letter of Credit Issuer is not indemnified by Borrower, the
Participants will reimburse and indemnify such Letter of Credit Issuer, in
proportion to their respective Percentages, for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements of whatsoever kind or nature
which may be imposed on, asserted against or incurred by such Letter of Credit
Issuer in performing its respective duties in any way relating to or arising out
of its issuance of Letters of Credit; provided, however, that no Participants
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Letter of Credit Issuer's gross negligence or willful
misconduct.
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SECTION 3
FEES; COMMITMENTS
3.01 Fees. (a) Borrower agrees to pay to the Administrative
Agent a commitment commission ("Commitment Commission") pro rata for the account
of each Non-Defaulting Bank with respect to its Commitment in effect from the
Closing Date to, but not including, the date the Total Commitment has been
terminated, which Commitment Commission shall be equal to 0.1% of such Bank's
Available Unutilized Commitment. Such Commitment Commission shall be due and
payable in arrears on the first Business Day of each March, June, September and
December and on the date upon which the Total Commitment is terminated.
(b) Borrower agrees to pay to the Administrative Agent for
the account of each Non-Defaulting Bank pro rata on the basis of their
respective Adjusted Percentages, a fee in respect of each Letter of Credit (the
"Letter of Credit Fee"), for the period from and including the date of issuance
of such Letters of Credit to and including the termination of such Letter of
Credit, computed at a rate per annum equal to the Applicable Eurodollar Margin
then in effect on the daily Stated Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on the
first Business Day of each March, June, September and December of each year and
on the date after the Total Commitment is terminated and no Letters of Credit
remain outstanding.
(c) Borrower agrees to pay to the Administrative Agent for
the account of each Letter of Credit Issuer a fee in respect of each Letter of
Credit issued by it (the "Facing Fee") computed at the rate of 1/8 of 1.00% per
annum on the daily Stated Amount of such Letter of Credit; provided, however,
that in no event shall the annual Facing Fee to any Letter of Credit Issuer be
less than $500 per Letter of Credit. Accrued Facing Fees shall be due and
payable quarterly in arrears on the first Business Day of each March, June,
September and December of each year and on the date after the Total Commitment
is terminated and no Letters of Credit remain outstanding.
(d) Borrower agrees to pay directly to the respective Letter
of Credit Issuer upon each issuance of, payment under, and/or amendment of, a
Letter of Credit issued by it such amount as shall at the time of such issuance,
payment or amendment be the administrative charge and expenses which such Letter
of Credit Issuer is customarily charging for issuances of, payments under, or
amendments of, letters of credit issued by it.
(e) Borrower shall pay to the Administrative Agent for its
own account and/or for distribution to the Banks such Fees as heretofore agreed
in writing by Borrower and the Administrative Agent.
(f) All computations of Fees shall be made in accordance
with Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least
three Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its
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Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Banks), Borrower shall have the right, without premium or penalty,
to terminate or partially reduce the Total Unutilized Commitment; provided,
however, that (a) any such termination shall apply to proportionately and
permanently reduce the Commitment of each Bank, (b) no such reduction shall
reduce any Non-Defaulting Bank's Commitment to an amount that is less than the
sum of (i) the outstanding Loans of such Bank plus (ii) such Bank's Adjusted
Percentage of Letter of Credit Outstandings and (c) any partial reduction
pursuant to this Section 3.02 shall be in the amount of at least $500,000 and in
integral multiples of $100,000 in excess thereof.
3.03 Termination of Commitments. The Total Commitment shall
terminate on the Maturity Date.
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SECTION 4
PAYMENTS
4.01 Voluntary Prepayments. Borrower shall have the right to
prepay Revolving Credit Loans in whole or in part, without premium or penalty,
from time to time on the following terms and conditions: (i) Borrower shall give
the Administrative Agent at the Payment Office written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay the Loans, the
amount of such prepayment and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings pursuant to which made, which notice shall be given by
Borrower at least one Business Day prior to the date of such prepayment with
respect to Base Rate Loans and two Business Days prior to the date of such
prepayment with respect to Eurodollar Loans, which notice shall promptly be
transmitted by the Administrative Agent to each of the Banks; (ii) each partial
prepayment of any Borrowing shall be in an aggregate principal amount of at
least $500,000 (or the outstanding balance of such Loans, if less) and, if
greater, in an integral multiple of $100,000; provided, however, that no partial
prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce the
aggregate principal amount of the Loans outstanding pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto; (iii) if
any Eurodollar Loan is prepaid pursuant to this Section 4.01 other than on the
last day of the Interest Period applicable thereto Borrower shall pay to the
Banks all amounts due under Section 1.11 with respect to such prepayment; and
(iv) each prepayment in respect of any Loans made pursuant to a Borrowing shall
be applied pro rata among the Banks which made such Loans; provided, however,
that at Borrower's election in connection with any prepayment of Loans pursuant
to this Section 4.01, such prepayment shall not be applied to any Loans of a
Defaulting Bank.
4.02 Mandatory Repayments.
(A) Requirements:
(a) (i) If on any date the sum of the aggregate outstanding
principal amount of Revolving Credit Loans made by Non-Defaulting Banks and the
Letter of Credit Outstandings exceeds the Adjusted Total Commitment as then in
effect, Borrower shall repay on such date the principal of Loans of
Non-Defaulting Banks, in an aggregate amount equal to such excess. If, after
giving effect to the repayment of all outstanding Revolving Credit Loans of
Non-Defaulting Banks, the aggregate amount of Letter of Credit Outstandings
exceeds the Adjusted Total Commitment then in effect, Borrower shall pay to the
Administrative Agent an amount in cash and/or Cash Equivalents equal to such
excess (up to the aggregate amount of the Letter of Credit Outstandings at such
time) and the Administrative Agent shall hold such payment as security for the
obligations of Borrower hereunder pursuant to a cash collateral agreement to be
entered into in form and substance reasonably satisfactory to the Administrative
Agent (which shall permit certain investments in Cash Equivalents satisfactory
to the Administrative Agent, until the proceeds are applied to the secured
obligations).
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(ii) If on any date the aggregate outstanding principal
amount of the Revolving Credit Loans made by a Defaulting Bank exceeds the
Commitment of such Defaulting Bank, Borrower shall repay the principal of Loans
of such Defaulting Bank in an amount equal to such excess.
(b) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans shall be repaid in full
on the Maturity Date.
(B) Application:
With respect to each prepayment of Revolving Credit Loans
required by Section 4.02, Borrower may designate the Types of Revolving Credit
Loans which are to be prepaid and the specific Borrowing or Borrowings under the
Facility pursuant to which made; provided, however, that (i) Eurodollar Loans
may only be prepaid if no Base Rate Revolving Credit Loans of Non-Defaulting
Banks remain outstanding; (ii) if any prepayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Revolving Credit
Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount for such Borrowing, such Borrowing shall be immediately
converted into Base Rate Loans; and (iii) each prepayment of any Revolving
Credit Loans made by Non-Defaulting Banks pursuant to a Borrowing shall be
applied pro rata among the Non-Defaulting Banks which made such Revolving Credit
Loans. In the absence of a designation by Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11. Notwithstanding the foregoing
provisions of this Section 4.02(B), if at any time the mandatory prepayment of
Revolving Credit Loans pursuant to Section 4.02(A) above would result, after
giving effect to the procedures set forth above, in Borrower incurring breakage
costs under Section 1.11 as a result of Eurodollar Loans being prepaid other
than on the last day of an Interest Period applicable thereto (the "Affected
Eurodollar Loans"), then Borrower may in its sole discretion initially deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of the Affected Eurodollar Loans with the Administrative Agent (which
deposit must be equal in amount to the amount of the Affected Eurodollar Loans
not immediately prepaid) to be held as security for the obligations of Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Administrative Agent and shall provide
for investments satisfactory to the Administrative Agent and Borrower, with such
cash collateral to be directly applied upon the first occurrence (or
occurrences) thereafter of the last day of an Interest Period applicable to the
relevant Revolving Credit Loans that are Eurodollar Loans (or such earlier date
or dates as shall be requested by Borrower) to repay an aggregate principal
amount of such Revolving Credit Loans equal to the Affected Eurodollar Loans not
initially prepaid pursuant to this sentence. Notwithstanding anything to the
contrary contained in the immediately preceding sentence, all amounts deposited
as cash collateral pursuant to the immediately preceding sentence shall be held
for the sole benefit of the Banks whose Revolving Credit Loans would otherwise
have been immediately prepaid with the amounts deposited and upon the taking of
any action by the Administrative Agent or the Banks pursuant to the remedial
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provisions of Section 9, any amounts held as cash collateral pursuant to this
Section 4.02(B) shall, subject to the requirements of applicable law, be
immediately applied to the Loans.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement in respect of
Revolving Credit Loans shall be made to the Administrative Agent for the ratable
(based on its pro rata share) account of the Banks entitled thereto not later
than 1:00 P.M. (New York time) on the date when due and shall be made in
immediately available funds and in lawful money of the United States of America
at the Payment Office, it being understood that written notice by Borrower to
the Administrative Agent to make a payment from the funds in Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Solely for purposes of calculating interest
due on any amount owing hereunder, any payments under this Agreement which are
made later than 1:00 P.M. (New York time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any
franchise or similar tax imposed on or measured by the net income or net profits
of a Bank pursuant to the laws of the jurisdiction in which it is organized or
managed and controlled or the jurisdiction in which the principal office or
applicable lending office of such Bank is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect thereto
(other than interest, penalties, levies, imposts, duties, fees, assessments or
other charges imposed or payable as a result of any action or inaction of such
Bank not timely or properly taken by such Bank or non-compliance by such Bank
with applicable law) (all such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges being referred to collectively as "Taxes").
If any Taxes are so levied or imposed, Borrower agrees to pay the full amount of
such Taxes, and such additional amounts, if any, as may be necessary so that
every payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed on
or measured by the net income or net profits of such Bank pursuant to the laws
of the jurisdiction in which the principal office or applicable lending office
of such Bank is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which the principal office or applicable
lending office of such Bank is located and for any withholding of taxes as such
Bank shall determine are payable by, or withheld from, such Bank in respect of
such
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amounts so paid to or on behalf of such Bank pursuant to the preceding sentence
and in respect of any amounts paid to or on behalf of such Bank pursuant to this
sentence. Borrower will furnish to the Administrative Agent within 45 days after
the date the payment of any Taxes is due pursuant to applicable law certified
copies of tax receipts evidencing such payment by Borrower. Borrower agrees to
indemnify and hold harmless each Bank, and reimburse such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such Bank.
These provisions contained in Sections 1.10, 1.11, 2.06, 4.04, and elsewhere
shall be interpreted in the broadest possible terms to include any increased
costs, payments or reduced income for any reason, including, but specifically
not by way of limitation, due to taxes, capital adequacy provisions, reserve
requirements, withholding obligations, costs due to the payment of any sums on a
date other than the regularly scheduled date or for any other reason, and
Borrower does hereby indemnify and hold harmless each Bank, for all such costs
and does agree to pay same or cover any Bank's expenses or losses in regard to
same. Borrower shall immediately pay such sums to any Bank as are necessary to
mitigate all such items. This obligation is in addition to all other obligations
of Borrower contained herein.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
Borrower and the Administrative Agent on or prior to the date of this Agreement,
or in the case of a Bank that is an assignee or transferee of an interest under
this Agreement pursuant to Section 1.13 or 12.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Bank is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit 4.04(b)(ii) hereto (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees that
from time to time after the date of this Agreement, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate. Notwithstanding anything to the contrary contained in
Section 1.10, 2.06 or 4.04(a), but subject to Section 12.04(b) and the
immediately succeeding sentence, (x) Borrower shall be entitled, to the extent
it is required to do so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or taxing authority
thereof or therein) from interest, fees
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or other amounts payable hereunder for the account of any Bank which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) Borrower shall not
be obligated pursuant to Section 1.10, 2.06 or 4.04(a) hereof to gross-up
payments to be made to a Bank in respect of income or similar taxes imposed by
the United States (I) if such Bank has not provided to Borrower the Internal
Revenue Service Forms required to be provided to Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(b), Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in Section
1.10, 2.06 or 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes after the date of this Agreement in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Taxes;
provided, however, such Bank shall provide to Borrower and the Administrative
Agent any reasonably available applicable Internal Revenue Service tax form
(reasonably similar in its simplicity and lack of detail to Internal Revenue
Service Form 1001) necessary or appropriate for the exemption or reduction in
the rate of such U.S. federal withholding tax.
(c) The provisions of this Section 4.04 shall be subject to
Section 1.12(b) (to the extent applicable).
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SECTION 5
CONDITIONS PRECEDENT
The obligation of the Banks to make each Loan hereunder, and
the obligation of the Letter of Credit Issuers to issue Letters of Credit
hereunder, is subject, at the time of each such Credit Event (except as
otherwise hereinafter indicated), to the satisfaction of each of the following
conditions:
5.01 Consent of Banks. On or prior to the Closing Date, each
of Borrower and the Banks shall have duly executed and delivered this Agreement.
5.02 Execution of Notes. On or prior to the Closing Date,
there shall have been delivered to the Administrative Agent for the account of
each Bank a Note executed by Borrower in the amount of each Bank's commitment,
containing terms as provided herein.
5.03 No Default; Representations and Warranties. On the
Closing Date and at the time of each Credit Event and also after giving effect
thereto, (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein or in each of the other Credit
Documents in effect at such time shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event (except to the extent that
such representations and warranties expressly relate to an earlier date, in
which case they shall be true and correct in all material respects as of such
earlier 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).
5.04 Officer's Certificate. On the Closing Date, the
Administrative Agent shall have received a certificate dated as of such date
signed by the President, any Vice President or the Treasurer of Borrower stating
that all of the applicable conditions set forth in Sections 5.03 and 5.08 have
been satisfied as of such date, which certificate may be contained in the
certificate delivered under Section 5.06.
5.05 Opinions of Counsel. On the Closing Date, the
Administrative Agent shall have received opinions, addressed to the
Administrative Agent and each of the Banks and dated the Closing Date, from (a)
Xxxxx & Xxxxx, L.L.P., counsel to Borrower, which opinion shall cover the
matters contained in Exhibit 5.05-A hereto and (b) Xxxxx X. XxXxxxxxx, Vice
President and General Counsel of Borrower, which opinion shall cover the matters
contained in Exhibit 5.05-B hereto.
5.06 Corporate Proceedings. (a) On the Closing Date, the
Administrative Agent shall have received from the Borrower a certificate, dated
the Closing Date, signed by the President, any Vice President or the Treasurer
or other appropriate representative in the form of Exhibit 5.06 hereto with
appropriate insertions and deletions, together with copies of the certificate of
formation
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or organization, the by-laws, or other organizational documents, and the
resolutions, or such other administrative approval, of the Borrower.
(b) On the Closing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the execution and delivery
of the Credit Documents shall be reasonably satisfactory in form and substance
to the Administrative Agent, and the Administrative Agent shall have received
all information and copies of all certificates, documents and papers, including
good standing certificates and any other records of corporate proceedings and
governmental approvals, if any, which the Administrative Agent may have
reasonably requested in connection therewith.
5.07 Litigation. On the Closing Date, there shall be no
actions, suits or proceedings by any administrative, governmental or other
public authority or other Person pending or threatened (a) with respect to this
Agreement or any other Credit Document or the transactions contemplated hereby
or thereby or (b) which the Administrative Agent or the Required Banks shall
reasonably determine is reasonably likely to, individually or in the aggregate,
(i) have a Material Adverse Effect or (ii) have a Material Adverse Effect on the
rights or remedies of the Banks or the Administrative Agent under the Credit
Documents, taken as a whole, or on the ability of the Borrower to perform its
obligations to the Banks and the Administrative Agent under the Credit
Documents.
5.08 Approvals. On the Closing Date, all material necessary
governmental and third party approvals and consents in connection with the
transactions contemplated by the Credit Documents and otherwise referred to
therein shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains or prevents such transactions or imposes, in
the reasonable judgment of the Required Banks or the Administrative Agent,
materially adverse conditions upon the consummation of such transactions.
5.09 Fees. On the Closing Date, Borrower shall have paid to
the Administrative Agent and the Banks all Fees and expenses agreed upon by such
parties to be paid on or prior to such date.
5.10 Margin Rules. On the date of each Credit Event, neither
the making of a Loan hereunder nor the use of the proceeds thereof will violate
or be inconsistent with the provisions of Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System.
5.11 Notice of Borrowing. On the date of each Credit Event,
Borrower shall have delivered to the Administrative Agent, the appropriate
Notice of Borrowing in accordance with the provisions hereof.
5.12 Fulfillment of Conditions. The acceptance of the
benefits of each Credit Event shall constitute a representation and warranty by
Borrower to the Administrative Agent and
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each of the Banks that all of the applicable conditions specified above exist as
of that time. All of the certificates, legal opinions and other documents and
papers referred to in this Section 5, unless otherwise specified, shall be
delivered to the Administrative Agent at its Notice Office for the account of
each of the Banks and, except for the Notes, in sufficient counterparts or
copies for each of the Banks and shall be reasonably satisfactory in form and
substance to the Administrative Agent.
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SECTION 6
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In order to induce the Banks to enter into this Agreement and
to make the Loans and issue and/or participate in Letters of Credit provided for
herein, Borrower makes the following representations and warranties to, and
agreements with, the Banks, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans (with the making of each
Credit Event thereafter being deemed to constitute a representation and warranty
that the matters specified in this Section 6 are true and correct in all
material respects on and as of the date of each such Credit Event, 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):
6.01 Status. Borrower and each Subsidiary (a) is a duly
organized and validly existing corporation, partnership, association, limited
liability company or other business entity in good standing under the laws of
the jurisdiction of its organization, (b) has the power and authority and has
obtained all requisite governmental licenses, authorizations, consents and
approvals (i) to own its property and assets and (ii) to transact the business
in which it is engaged, except in such case where the failure to have such power
and authority or to obtain such governmental licenses, authorizations, consents
and approvals, individually and in the aggregate, (x) is not reasonably likely
to have a Material Adverse Effect and (y) is not reasonably likely to have a
material adverse effect on the rights and remedies of the Banks or the
Administrative Agent under the Credit Documents, taken as a whole, or on the
ability of the Borrower to perform its obligations to the Banks and the
Administrative Agent under the Credit Documents, and (c) is duly qualified and
is authorized to do business and is in good standing in all jurisdictions where
it is required to be so qualified and where the failure to be so qualified,
individually and in the aggregate, is not reasonably likely to have a Material
Adverse Effect.
6.02 Power and Authority. The Borrower has the power and
authority to execute, deliver and carry out the terms and provisions of each
Credit Document and has taken all necessary action to authorize the execution,
delivery and performance of each Credit Document. The Borrower has duly executed
and delivered each Credit Document and each such Credit Document constitutes the
legal, valid and binding obligation of the Borrower, enforceable against it in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
6.03 No Violation. (a) Neither the execution, delivery or
performance by the Borrower of the Credit Documents nor compliance with the
terms and provisions thereof (i) will contravene any applicable provision of any
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality of the United States or any State thereof,
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(ii) will result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under (or with notice or lapse of time or
both would constitute a default under), or result in the creation or imposition
of (or the obligation to create or impose) any Lien upon any of the property or
assets of Borrower or any Subsidiary pursuant to the terms of, any indenture,
mortgage, deed of trust, agreement or other instrument to which Borrower or any
subsidiary is a party or by which it or any of its properties or assets are
bound or to which it is subject or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws of Borrower or any Subsidiary (except
for, in the case of clauses (i) and (ii) above only, contraventions, breaches,
defaults, creations or impositions which individually and in the aggregate, (x)
are not reasonably likely to have a Material Adverse Effect and (y) are not
reasonably likely to have a material adverse effect on the rights or remedies of
the Banks or the Administrative Agent under the Credit Documents, taken as a
whole, or on the ability of the Borrower to perform its obligations to the Banks
and the Administrative Agent under the Credit Documents).
(b) Neither Borrower nor any Subsidiary is (i) in
contravention of any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality
of the United States or any State thereof, (ii) in breach of any of the terms,
covenants, conditions or provisions of, or in default under (or with notice or
lapse of time or both would be in default under), any indenture, mortgage, deed
of trust, agreement or other instrument to which Borrower or any Subsidiary is a
party or by which it or any of its properties or assets are bound or to which it
is subject or (iii) in violation of any provision of the Certificate of
Incorporation or By-Laws of Borrower or any Subsidiary (except for, in the case
of clauses (i) and (ii) above only, contraventions, breaches or defaults which,
individually and in the aggregate, (x) are not reasonably likely to have a
Material Adverse Effect and (y) are not reasonably likely to have a material
adverse effect on the rights or remedies of the Banks or the Administrative
Agent under the Credit Documents, taken as a whole, or on the ability of the
Borrower to perform its obligations to the Banks and the Administrative Agent
under the Credit Documents).
6.04 Litigation. There are no actions, suits or proceedings
by an administrative, governmental or other public authority or other Person
pending or, to the best of Borrower's knowledge, threatened against or with
respect to Borrower or any Subsidiary or any of their respective properties or
assets which, individually or in the aggregate, (a) are reasonably likely to
have a Material Adverse Effect or (b) are reasonably likely to have a material
adverse effect on the rights or remedies of the Banks or the Administrative
Agent under the Credit Documents, taken as a whole, or on the ability of the
Borrower to perform its obligations to the Banks and the Administrative Agent
under the Credit Documents.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
all Loans shall be used to support Borrower's ongoing working capital needs,
including acquisition of rigs, or to provide for the general corporate purposes
of Borrower.
(b) Neither the making of any Loan hereunder, nor the use of
the proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board
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of Governors of the Federal Reserve System and no part of the proceeds of any
Loan will be used to purchase or carry any Margin Stock in violation of
Regulation U or to extend credit for the purpose of purchasing or carrying any
Margin Stock.
6.06 Governmental Approvals. Except for the orders, consents,
approvals, licenses, authorizations, validations, recordings, registrations and
exemptions that have already been duly made or obtained and remain in full force
and effect, no order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any foreign or
domestic governmental or public body or authority, or any subdivision thereof,
is necessary or is required to authorize or is required in connection with (i)
the execution, delivery and performance of any Credit Document or (ii) the
legality, validity, binding effect or enforceability of any Credit Document.
6.07 Investment Company Act. Neither Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.08 Public Utility Holding Company Act. Neither Borrower nor
any Subsidiary is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished for purposes of or
in connection with this Agreement or any transaction contemplated herein by or,
to Borrower's knowledge, on behalf of Borrower or any Subsidiary in writing to
(i) the Administrative Agent or any Bank or (ii) any Person providing
information to the Administrative Agent or any Bank on behalf of Borrower or any
Subsidiary is, and all other such factual information (taken as a whole)
hereafter furnished by or, to Borrower's knowledge, on behalf of Borrower or any
Subsidiary in writing to (i) the Administrative Agent or any Bank or (ii) any
Person providing information to the Administrative Agent or any Bank on behalf
of Borrower or any Subsidiary will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. The projections
contained in such materials are based on supporting estimates and assumptions
believed by such Persons in good faith to be reasonable at the time made as to
the future financial performance of Borrower and the Subsidiaries for the period
covered, it being recognized by the Administrative Agent and the Banks that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There is no fact known to Borrower or any Subsidiary
which is reasonably likely to have a Material Adverse Effect which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
hereby.
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6.10 Financial Condition; Financial Statements. (a) (i) The
consolidated balance sheet of Borrower and the Subsidiaries at December 31, 1996
and the related consolidated statements of operations and cash flows of Borrower
and the Subsidiaries for the fiscal year ended as of such date, which have been
examined by Coopers & Xxxxxxx L.L.P., independent certified public accountants,
who delivered an unqualified opinion in respect thereof, and (ii) the
consolidated balance sheet of Borrower and the Subsidiaries as of September 30,
1997 and the related consolidated statements of operations and cash flows for
Borrower and the Subsidiaries for the three-month period then ended, copies of
which have heretofore been furnished to each Bank, present fairly in all
material respects the financial position of such entities at the dates of said
statements and the results for the period covered thereby in accordance with
GAAP, except to the extent provided in the notes to said financial statements
and, in the case of the September 30, 1997 statements, subject to normal and
recurring year-end audit adjustments and the exclusion of detailed footnotes.
All such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied except to the extent
provided in the notes to said financial statements. Nothing has occurred since
December 31, 1995 that has had or is reasonably likely to have a Material
Adverse Effect.
(b) There are, as of the Closing Date, no liabilities or
obligations with respect to Borrower or any Subsidiary of a nature (whether
absolute, accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, are reasonably likely to have a Material Adverse
Effect.
6.11 Tax Returns and Payments. Borrower and each Subsidiary
has filed all federal income tax returns and all other material tax returns,
domestic and foreign, required to be filed by it and has paid all material taxes
and assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith and for which adequate
reserves have been established as is required by GAAP or which if unfiled or
unpaid would not reasonably be likely to have a Material Adverse Effect.
Borrower and each Subsidiary has paid, or has provided adequate reserves (in
accordance with GAAP) for the payment of, all federal, state and foreign income
taxes applicable for all prior fiscal years and for the current fiscal year to
the Second Amended and Restated Effectiveness Date. Neither Borrower nor any
Subsidiary knows of any proposed tax assessment against any such Person that is
reasonably likely to have a Material Adverse Effect and which is not being
actively contested in good faith by such Person to the extent affected thereby
by appropriate proceedings; provided, however, that such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
6.12 Employee Benefit Plans. (a) Each member of the ERISA
Group is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code with respect to each Plan other than any
failure to so comply that is not reasonably likely to have a Material Adverse
Effect. No member of the ERISA Group has (i) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or is reasonably likely to
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result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Code or (ii) incurred any liability under Title IV of ERISA
within the preceding six years (other than a liability to the PBGC for premiums
under Section 4007 of ERISA) that has not been satisfied. The amount of Unfunded
Liabilities in the aggregate for all Plans (excluding for purposes of such
computation any Plans which have a negative amount of Unfunded Liabilities)
could not reasonably be expected to result in a Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities other than any
failure to so comply that could not reasonably be expected to have a Material
Adverse Effect. Neither Borrower nor any Subsidiary has incurred any material
obligation in connection with the termination of or withdrawal from any Foreign
Pension Plan. The present value of the accrued benefit liabilities (whether or
not vested) under each Foreign Pension Plan, determined as of the end of
Borrower's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities by
an amount that could reasonably be expected to have a Material Adverse Effect.
6.13 Subsidiaries. Annex 6.13 hereto lists each Subsidiary
(and the direct and indirect ownership interest of Borrower therein), in each
case existing on the Closing Date. All the outstanding shares of Capital Stock
of each Subsidiary owning or leasing Principal Properties have been duly
authorized and validly issued, are fully paid and non-assessable and (except for
any directors' qualifying shares) are owned by Borrower free and clear of all
Liens, other than Permitted Liens.
6.14 Patents, etc. Borrower and each Subsidiary has obtained
all patents, trademarks, service marks, trade names, copyrights, licenses and
other rights (collectively, the "Intellectual Property"), free from burdensome
restrictions, that are necessary for the operation of their respective
businesses as presently conducted and the failure to obtain which is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect. No
claim is pending or, to the best of Borrower's knowledge, threatened to the
effect that the actions of Borrower or any Subsidiary infringe upon or conflict
with the asserted rights of any other Person under any Intellectual Property,
except for such claims which are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect, and, to the best of
Borrower's knowledge, there is no basis for any such claim (whether or not
pending or threatened). No claim is pending or, to the best of Borrower's
knowledge, threatened to the effect that any such Intellectual Property owned or
licensed by Borrower or any Subsidiary or which Borrower or any Subsidiary
otherwise has the right to use is invalid or unenforceable by Borrower or such
Subsidiary, except for such claims which are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect, and, to the best
of Borrower's knowledge, there is no reasonable basis for any such claim
(whether or not pending or threatened).
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6.15 Environmental Matters. (a) Borrower and each Subsidiary
is in compliance with all Environmental Laws and is not subject to any liability
under any Environmental Law except as would not, individually or in the
aggregate, reasonably be likely to have a Material Adverse Effect. All licenses,
permits, registrations, or approvals required for the business conducted and for
the operations and facilities owned, leased or operated by Borrower and each
Subsidiary under any Environmental Law have been obtained and Borrower and each
Subsidiary is in compliance therewith, except such licenses, permits,
registrations or approvals the failure to obtain or to comply therewith is not,
individually or in the aggregate, reasonably likely to have a Material Adverse
Effect. Neither Borrower nor any Subsidiary is in any respect in noncompliance
with, breach of or default under any applicable writ, order, judgment,
injunction, or decree to which Borrower or such Subsidiary is a party or which
would affect the ability of Borrower or such Subsidiary to operate any Real
Property, offshore drilling rig or other facility and no event has occurred and
is continuing which, with the passage of time or the giving of notice or both,
would constitute noncompliance, breach of or default thereunder, except in each
such case, such noncompliance, breaches or defaults which are not, individually
or in the aggregate, reasonably likely to have a Material Adverse Effect. There
are no Environmental Claims pending or, to the best knowledge of Borrower,
threatened, against Borrower or any Subsidiary wherein an unfavorable decision,
ruling or finding is, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect. Neither Borrower nor any Subsidiary has received
notice that it has been identified as a potentially responsible party under
CERCLA or any comparable foreign or state law, nor has Borrower or any
Subsidiary received any written notification that any Hazardous Materials that
it or any of their respective predecessors in interest has used, generated,
stored, treated, handled, transported or disposed of, or arranged for disposal
or treatment of, have been found at any location at which any Person is
conducting or plans to conduct any action pursuant to any Environmental Law
except as would not, individually or in the aggregate, reasonably be likely to
have a Material Adverse Effect. No properties now or formerly owned, leased or
operated by Borrower or any Subsidiary or, to the knowledge of Borrower or any
Subsidiary, any of their respective predecessors in interest, are (x) listed or
proposed for listing on the National Priorities List under CERCLA or (y) listed
on the Comprehensive Environmental Response, Compensation and Liability
Information System List promulgated pursuant to CERCLA or (z) included on any
comparable lists maintained by any Governmental Authority except as would not,
individually or in the aggregate, reasonably be likely to have a Material
Adverse Effect. There are no past or present events, conditions, activities,
practices or actions, or any agreements, judgments, decrees or orders by which
Borrower or any Subsidiary is bound, which would reasonably be expected to
prevent Borrower's or any Subsidiary's compliance with any Environmental Law, or
which would reasonably be expected to give rise to any liability of Borrower or
any Subsidiary under any Environmental Law, or to cause any Real Property,
offshore drilling rig or other facility owned, leased or operated by Borrower or
any Subsidiary to be subject to any restriction on its ownership, occupancy, use
or transferability under any Environmental Law, except in each such case, such
noncompliance, liability or restriction which is, individually or in the
aggregate, not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i)
generated, used, processed, treated, stored or disposed of on, at or under or
transported to or from, any Real Property, offshore
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drilling rig or other facility at any time owned, leased or operated by Borrower
or any Subsidiary or (ii) Released on, at, under or from any such Real Property,
offshore drilling rig or other such facility, in each case where such
occurrence, or event is, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect.
6.16 Properties. (a) Borrower and each Subsidiary has title
to all Principal Properties owned by them including all such properties
reflected in the consolidated balance sheets of Borrower and the Subsidiaries as
referred to in Section 6.10(a), free and clear of all Liens, other than (i) as
referred to in the consolidated balance sheet or in the notes thereto or (ii)
Permitted Liens.
(b) Annex 6.16(b) hereto sets forth all the offshore
drilling rigs owned or leased for more than two years by Borrower or any
Subsidiary on the Closing Date, and identifies the registered owner, flag,
official or patent number, as the case may be, and the location thereof on the
Closing Date.
6.17 Labor Relations. Neither Borrower nor any Subsidiary is
engaged in any unfair labor practice that is, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect. There is (i) no unfair
labor practice complaint pending against Borrower or any Subsidiary or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against any of them or, to the best of
Borrower's knowledge, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against Borrower or any Subsidiary or, to
the best of Borrower's knowledge, threatened against Borrower or any Subsidiary
and (iii) no union representation petition existing with respect to the
employees of and of them and no union organizing activities are taking place,
except with respect to any matter specified in clauses (i), (ii) or (iii) above,
either individually or in the aggregate, such as is not reasonably likely to
have a Material Adverse Effect.
6.18 Insurance. Borrower and each Subsidiary has insured its
properties and assets against such risks and in such amounts as are customary
for companies engaged in similar businesses.
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SECTION 7
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that on the Closing Date and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred
hereunder or under any other Credit Document, are paid in full:
7.01 Information Covenants. Borrower will furnish to each
Bank:
(a) Annual Financial Statements. Within 95 days after the
close of each fiscal year of Borrower during the term hereof, the consolidated
balance sheet of Borrower and the Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of operations and stockholders'
equity and cash flows for such fiscal year, in each case setting forth
comparative consolidated figures for the preceding fiscal year, and examined by
independent certified public accountants of recognized national standing whose
opinion shall not be qualified as to the scope of audit and as to the status of
Borrower and the Subsidiaries as a going concern.
(b) Quarterly Financial Statements. As soon as available and
in any event within 60 days after the close of each of the first three (3)
fiscal quarters of each fiscal year during the term hereof, the consolidated
balance sheet of Borrower and the Subsidiaries as at the end of such quarterly
period, and the related consolidated statements of operations and, if included
in Borrower's reports filed with the SEC pursuant to the Exchange Act,
stockholders' equity for such quarterly period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly period, and the
consolidated statement of cash flows for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and in each case setting forth
comparative consolidated figures for the related period in the prior fiscal
year, except with respect to the consolidated balance sheet, which shall be as
of the end of the prior fiscal year, all of which shall be certified by the
chief financial officer or controller of Borrower as fairly presenting in all
material respects the financial conditions and results of operations of Borrower
and the Subsidiaries in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments and the exclusion of detailed
footnotes.
(c) Compliance Certificate. At the time of the delivery of
the financial statements provided for in Sections 7.01(a) and (b), a certificate
of Borrower signed by its chief financial officer, controller, treasurer or
other Authorized Officer in the form of Exhibit 7.01(c) hereto to the effect
that no Default or Event of Default exists or, if any Default or Event of
Default does exist, specifying the nature and extent thereof, which certificate
shall set forth the calculations required to establish whether Borrower and the
Subsidiaries were in compliance with the provisions of Section 8 as at the end
of such fiscal period or year, as the case may be.
(d) Notice of Default or Litigation. Promptly, and in any
event within (i) five Business Days after an executive officer of Borrower
obtains knowledge thereof, notice of; (y) the
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occurrence of any event which constitutes a Default or Event of Default which
notice shall specify the nature thereof, the period of existence thereof and
what action Borrower proposes to take with respect thereto and (z) notice of any
change in any Rating of Borrower, and (ii) ten Business Days after an executive
officer of Borrower obtains knowledge thereof, notice of the commencement of or
any significant development in any litigation or governmental proceeding pending
against Borrower or any Subsidiary (other than to the extent that disclosure of
the details thereof would, in the opinion of counsel to Borrower, compromise
attorney-client privilege) (i) which is reasonably likely to have a Material
Adverse Effect or (ii) which is reasonably likely to have a material adverse
effect on the ability of the Borrower to perform its obligations under the
Credit Documents.
(e) Auditors' Reports. Promptly upon receipt thereof, a copy
of each formal written report or management letter submitted to Borrower by its
independent accountants in connection with any annual, interim or special audit
made by it of the books of Borrower.
(f) SEC Reports. Promptly upon transmission thereof, copies
of any material filings and registrations with, and reports to, the SEC by
Borrower or any Subsidiary (other than registrations on Form S-8 under the
Securities Act, registrations of equity securities pursuant to Rule 415 under
the Securities Act which do not involve an underwritten public offering and
reports on Form 11-K or pursuant to Section 16(a) under the Exchange Act) and
copies of all financial statements, proxy statements, notices and reports as
Borrower shall generally send to analysts or all holders of its Capital Stock in
their capacity as such holders (in each case to the extent not theretofore
delivered to the Banks pursuant to this Agreement).
(g) Other Information. From time to time, such other
information or documents (financial or otherwise) as the Administrative Agent or
any Bank may reasonably request.
7.02 Books, Records and Inspections. Borrower will, and will
cause each Subsidiary to, keep books of records and accounts in which entries
will be made of all its business transactions to enable Borrower to prepare
financial statements in accordance with GAAP, and will reflect in its financial
statements adequate accruals and appropriations to reserves, all in accordance
with GAAP. Borrower will, and will cause each Subsidiary to, permit, upon
reasonable notice to the chief financial officer, controller or any other
Authorized Officer of Borrower, officers and designated representatives of the
Administrative Agent or any Bank (at the expense of Borrower if after an Event
of Default) to visit and inspect any of the properties or assets of Borrower or
any Subsidiary, and to examine the books of account of Borrower or any
Subsidiary and discuss the affairs, finances and accounts of Borrower or of any
Subsidiary with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals as the
Administrative Agent or any Bank may desire.
7.03 Maintenance of Insurance. Borrower will, and will cause
each Subsidiary to, at all times maintain in full force and effect insurance in
such amounts and of such types with such financially sound and reputable
insurers covering such risks and liabilities and with such deductibles
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or self-insured retentions as are in accordance with normal industry practice
for similarly situated insureds.
7.04 Payment of Taxes. Borrower will pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid could reasonably be expected to
become a Lien or charge upon any properties of Borrower or any Subsidiary other
than a Permitted Lien; provided, however, that neither Borrower nor any
Subsidiary shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with GAAP or
which if unpaid would not reasonably be likely to have a Material Adverse
Effect.
7.05 Consolidated Corporate Franchises. Borrower will do, and
will cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material rights and
authority, unless the failure to do so would not have a Material Adverse Effect;
provided, however, that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
7.06 Compliance with Statutes, etc. Borrower will, and will
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, including without limitation all Environmental Laws and
ERISA and the rules and regulations thereunder, other than those the
non-compliance with which is not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect or is not, individually or in the
aggregate, reasonably likely to have a material adverse effect on the ability of
the Borrower to perform its obligations under the Credit Documents.
7.07 Good Repair. Borrower will, and will cause each
Subsidiary to, keep its properties and equipment (including all Fleet Rigs) used
or useful in its business, in whomsoever's possession they may be, in good
repair, working order and condition, normal wear and tear excepted, and, subject
to Section 8.02 and the occurrence of a force majeure, see that from time to
time there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, (i) to the extent and in the manner useful or customary
for companies in similar businesses and (ii) to the extent where the failure to
do so is, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect. For purposes of this Section 7.07, any Fleet Rig shall be deemed
to be in good repair, working order and condition if such Fleet Rig is
classified in the highest class available for rigs of its age and type with the
American Bureau of Shipping, Inc. or another internationally recognized
classification society acceptable to the Administrative Agent.
7.08 Use of Proceeds. All proceeds of the Loans shall be
used as provided in Section 6.05.
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7.09 ERISA. As soon as possible and, in any event, within 30
days after an executive officer of Borrower knows or has reason to know that any
member of the ERISA Group (i) gives or is required to give notice to the PBGC of
any "reportable event" (as defined in Section 4043 of ERISA) with respect to any
Plan which would reasonably be expected to constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA that would reasonably be expected to result in a Material Adverse
Effect, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could reasonably be expected to result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Code, Borrower
will deliver to each of the Banks a certificate of the chief financial officer
of Borrower setting forth details as to such occurrence and the action, if any,
that Borrower, such Subsidiary or such member of the ERISA Group is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by Borrower, such Subsidiary, the member of the ERISA Group, a
plan participant or the plan administrator. Upon written request Borrower will
deliver to each of the Banks a complete copy of the annual report (Form 5500) of
each Plan (as defined in Section 3(2) of ERISA) (including, to the extent
required, the related financial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed with
the Internal Revenue Service, if any.
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SECTION 8
NEGATIVE COVENANTS
Borrower covenants and agrees that as of the Closing Date and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred
hereunder or under any other Credit Document, are paid in full:
8.01 Changes in Business. Borrower shall not materially alter
the character of the business of Borrower and the Subsidiaries taken as a whole
from that conducted at the Closing Date (including any material expansion
outside of the offshore contract drilling and production services, drilling
management services and oil and gas exploration and production businesses).
8.02 Consolidation, Merger, Sale of Assets, etc. Borrower
shall not directly or indirectly, wind up, liquidate or dissolve its affairs, or
enter into any transaction of merger or consolidation, sell or otherwise dispose
of all or any part of its property or assets (other than inventory or worn-out
or obsolete equipment in the ordinary course of business) or agree (unless such
agreement is conditioned upon a waiver of this provision by the Banks hereunder)
to do any of the foregoing at any future time, except that each of the following
shall be permitted:
(a) (i) any Subsidiary may be merged or consolidated with or
into, or be liquidated or dissolved into, Borrower (so long as Borrower is the
surviving corporation) or any other Person so long as a Subsidiary or Borrower
is the surviving Person (including a surviving Person that becomes a Subsidiary
as a result of such transaction) and (ii) all or any part of the business,
properties and assets of any Subsidiary may be conveyed, leased, sold or
transferred to Borrower or any Subsidiary;
(b) any sale or disposition of assets (including the stock
of Subsidiaries) provided, however, that all proceeds of such sales shall be
used without violating the provisions of Section 8.01 and each such sale or
disposition shall be in an amount at least equal to the fair market value
thereof; or
(c) the existence or foreclosure (or transfer in lieu of) of
any Lien permitted hereunder or the consummation of any transaction permitted
under the Credit Documents.
8.03 Indebtedness and Liens. (a) The Borrower shall not, and
shall not permit any of its Subsidiaries to, issue, assume or guarantee any
Indebtedness for borrowed money secured by any Lien upon any Principal Property
or any shares of stock or indebtedness of any Subsidiary that owns or leases a
Principal Property (whether such Principal Property, shares of stock or
indebtedness are now owned or hereafter acquired) without making effective
provision whereby the Obligations (together with, if the Borrower shall so
determine, any other Indebtedness or other obligation of the Borrower or
Subsidiaries) shall be secured equally and ratably with (or, at the option of
the Borrower, prior to) the Indebtedness so secured for so long as such
Indebtedness is so secured. The
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foregoing restrictions will not, however, apply to Indebtedness secured by
Permitted Liens, provided all such Indebtedness must comply with any applicable
provisions of Section 8.04(b).
(b) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may, without securing the Obligations, issue, assume or guarantee
Indebtedness that would otherwise be subject to the foregoing restrictions in an
aggregate principal amount that, together with all other such Indebtedness of
the Borrower and its Subsidiaries that would otherwise be subject to the
foregoing restrictions (not including Indebtedness permitted to be secured under
the definition of Permitted Liens) and the aggregate amount of Attributable
Indebtedness deemed outstanding with respect to Sale/Leaseback Transactions
(other than those in connection with which the Borrower has voluntarily retired
any of the Obligations, any Pari Passu Indebtedness or any Funded Indebtedness
pursuant to Section 8.06(c)) does not at any one time exceed 10% of Consolidated
Net Tangible Assets of the Borrower and its consolidated subsidiaries.
8.04 Restrictions on Subsidiaries. (a) Borrower shall not
create or suffer to exist or allow any Subsidiary to create or suffer to exist,
any encumbrance or restriction which, directly or indirectly, prohibits or
otherwise restricts the ability of any Subsidiary to (i) pay Dividends or make
other distributions or pay any Indebtedness owed to Borrower or any Subsidiary,
(ii) make loans or advances to Borrower or any Subsidiary or (iii) transfer any
of its properties or assets to Borrower or any Subsidiary, other than
encumbrances or restrictions existing under or by reason of:
(A) the Credit Documents;
(B) applicable law;
(C) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices;
(D) any restriction or encumbrance with respect to a
Subsidiary imposed pursuant to (i) an agreement which has been entered
into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement or (ii) as required by
any bare boat charter;
(E) Any other encumbrance or restriction in effect on the
Closing Date and any refinancing, extension or renewal thereof, so long
as such refinancing, extension or renewal is no more restrictive than
that existing on the Closing Date;
(F) Permitted Liens and other Liens permitted to exist under
the Credit Documents and any documents or instruments governing the
terms of any Indebtedness or other obligations secured by any such
Liens; provided, however, that such prohibitions or restrictions apply
only to the assets subject to such Liens;
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(G) encumbrances or restrictions on property of any
Subsidiary which do not restrict the ability of such Subsidiary to
transfer the property subject to such encumbrances or restrictions; and
(H) any encumbrances or restrictions pursuant to an
agreement in effect on the date on which such Subsidiary was acquired
by Borrower or any Subsidiary (provided that such encumbrance or
restriction was not incurred in connection with or in contemplation of
such acquisition).
(b) Borrower shall not permit any Subsidiary to incur, or
become liable for, directly or indirectly, any Indebtedness for borrowed money
unless (i) such Indebtedness is non-recourse to the Borrower and all other
Subsidiaries, (ii) such Indebtedness is permitted under Section 8.03(b) hereof;
or (iii) such Subsidiary guarantees the Obligations equally and ratably with
such Indebtedness of the Subsidiary by executing a guaranty agreement in the
form of Exhibit 8.04(b).
8.05 Transactions with Affiliates. Borrower shall not,
directly or indirectly, enter into any transaction or series of transactions
after the Closing Date whether or not in the ordinary course of business, with
any Affiliate other than on terms and conditions substantially as favorable to
Borrower as would be obtainable by Borrower at the time in a comparable arm's
length transaction with a Person other than an Affiliate; provided, however,
that the foregoing restrictions shall not apply to (a) employment arrangements
entered into in the ordinary course of business with officers of Borrower, (b)
customary fees paid to members of the Board of Directors of Borrower and (c) all
transactions between or among Borrower and one or more Wholly-Owned
Subsidiaries.
8.06 Limitation on Sale/Leaseback Transactions. The Borrower
shall not, and shall not permit any Subsidiary to, enter into any Sale/Leaseback
Transaction with any Person (other than the Borrower or a Subsidiary) unless:
(a) the Borrower or such Subsidiary would be entitled to
incur Indebtedness in a principal amount equal to the Attributable Indebtedness
with respect to such Sale/Leaseback Transaction secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant to Section 8.03 or
8.04 without equally and ratably securing the Loans pursuant to such covenant;
(b) after the Closing Date and within a period commencing
nine (9) months prior to the consummation of such Sale/Leaseback Transaction and
ending nine (9) months after the consummation thereof, the Borrower or such
Subsidiary shall have expended for property used or to be used in the ordinary
course of business of the Borrower and its Subsidiaries an amount equal to all
or a portion of the net proceeds of such Sale/Leaseback Transaction and the
Borrower shall have elected to designate such amount as a credit against such
Sale/Leaseback Transaction (with any such amount not being so designated to be
applied as set forth in clause (c) below or as otherwise permitted); or
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(c) the Borrower, during the nine (9) month period after the
effective date of such Sale/Leaseback Transaction, shall have applied to either
(i) the voluntary defeasance or retirement of any Obligations, any Pari Passu
Indebtedness or any Funded Indebtedness or (ii) the acquisition of one or more
Principal Properties at fair value, an amount equal to the greater of the net
proceeds of the sale or transfer of the property leased in such Sale/Leaseback
Transaction and the fair value, as determined by the Board of Directors of the
Borrower and evidenced by a Board Resolution, of such property at the time of
entering into such Sale/Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount expended by the Borrower
as set forth in clause (b) above), less an amount equal to the sum of the
principal amount of the Obligations, Pari Passu Indebtedness and Funded
Indebtedness voluntarily defeased or retired by the Borrower plus any amount
expended to acquire any Principal Properties at fair value, within such
nine-month period and not designated as a credit against any other
Sale/Leaseback Transaction entered into by the Borrower or any Subsidiary during
such period.
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 to be less than 3.00:1.00.
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 Through End of
Calendar Year 1998 Calendar Year 1999 All Other Periods
------------------ ------------------ ------------------
.50 to 1.0 .45 to 1.0 .40 to 1.0
8.09 Tangible Net Worth. Borrower shall not permit
Consolidated Tangible Net Worth, measured at the end of each fiscal quarter
after January 1, 1998 to be less than the sum of (a) $525.0 million, plus (b) an
amount (added at the end of each fiscal quarter) equal to the greater of (x) $0
and (y) (A) 50% of Consolidated Net Income from January 1, 1998 to the end of
such quarter (without giving effect to the proviso thereto) and (B) 75% of the
value of any consideration received (net of issuance costs) (other than from the
Borrower or any Subsidiary) in connection with the issuance of any capital stock
by the Borrower or any subsidiary subsequent to December 9, 1997, and at any
time during the term hereof. In the case of any such issuance for non-cash
consideration, the value of the consideration received shall be deemed to be the
net increase in Consolidated Tangible Net Worth resulting from the issuance
(after giving effect to, without limitation, any goodwill or other intangibles
created by the transaction or any writedown or writeoff in connection with the
transaction).
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SECTION 9
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events
(each an "Event of Default"):
9.01 Payments. Borrower shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for one (1) or more Business Days after notice (written or oral) from
the Administrative Agent or any Bank directed to the Chief Executive Officer,
Chief Financial Officer, Treasurer or Controller of the Borrower, in the payment
when due of any Unpaid Drawing, any interest on the Loans or any Fees or any
other amounts owing under any Credit Document; or
9.02 Representations, etc. Any material representation,
warranty or statement made by the Borrower in any Credit Document or in any
statement or certificate delivered or required to be delivered pursuant thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
9.03 Covenants. (a) Borrower or any Subsidiary shall default
in the due performance or observance by it of any term, covenant or agreement
contained in Sections 7.08, 8.01, 8.02, 8.07, 8.08, or 8.09 or (b) Borrower
shall default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in Section 9.01, 9.02 or clause (a)
of this Section 9.03) contained in any Credit Document and such default shall
continue unremedied for a period of at least thirty (30) days after notice to
any of the officers of Borrower named in Section 9.01(a) by the Administrative
Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) Borrower or any
Subsidiary shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations and any non-recourse indebtedness permitted to be
incurred hereunder) beyond the period of grace, if any, applicable thereto or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, any such Indebtedness to
become due prior to its stated maturity; or (b) any Indebtedness of Borrower
(other than the Obligations and any non-recourse indebtedness permitted to be
incurred hereunder) shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof; provided, however, that it shall not constitute an
Event of Default pursuant to this Section 9.04 unless any such event referred to
in clause (a) or (b) occurs with respect to one or more issues of Indebtedness
aggregating at least $25.0 million or more; or
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9.05 Bankruptcy, etc. Borrower or any significant Subsidiary
(as such term is defined in Article 1, Rule 1-02 of Regulation S-X of the
Securities and Exchange Commission as in effect on the date hereof) shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy", as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Borrower or any significant Subsidiary and the petition is not dismissed within
60 days after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of Borrower or any significant Subsidiary; or Borrower or any
significant Subsidiary commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Borrower or such significant Subsidiary; or there is
commenced against Borrower or any significant Subsidiary any such case or
proceeding which remains undismissed for a period of sixty (60) days; or
Borrower or any significant Subsidiary is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding is
entered; or Borrower or any significant Subsidiary suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of sixty (60) days; or Borrower
or any significant Subsidiary makes a general assignment for the benefit of
creditors; or any corporate action is taken by Borrower or any significant
Subsidiary for the purpose of effecting any of the foregoing; or
9.06 Default Under Other Senior Indebtedness. Borrower shall
default under its Second Amended and Restated Credit Agreement dated December 9,
1997 with the Administrative Agent, as Agent and the syndicate of banks named
therein.
9.07 Judgments. One or more judgments or decrees shall be
entered against Borrower or any Subsidiary involving a liability of $10.0
million or more in the aggregate (not paid or to the extent not covered by
insurance) and any such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within sixty (60) days from the
entry thereof; or
9.08 Change of Control. There shall have occurred a Change
of Control; or
9.09 Employee Benefit Plans. (a) Any member of the ERISA
Group shall fail to pay when due an amount or amounts which it shall have become
liable to pay under Title IV of ERISA; or(b) notice of intent to terminate a
Plan shall be filed under Section 4041(c) of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or (c) the
PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Plan; or (d) there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans or
(e) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan; or (f) any Lien in
favor of the PBGC or a Plan shall arise on the assets of any member of the ERISA
Group or a Subsidiary; and
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in each case in items (a) through (f) above, such event or condition, together
with all other events or conditions, if any, could reasonably be expected to
result in a Material Adverse Effect;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to Borrower, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent or any Bank to enforce its claims against Borrower, except as otherwise
specifically provided for in this Agreement (provided, however, that, if an
Event of Default specified in Section 9.05 shall occur with respect to Borrower,
the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Commission and any earned, unpaid fees
shall forthwith become due and payable without any other notice of any kind;
(ii) declare the principal of and any accrued interest in respect of all Loans
and all obligations owing hereunder (including Unpaid Drawings) and thereunder
to be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by Borrower; (iii) terminate any Letter of Credit which may be
terminated in accordance with its terms; (iv) direct Borrower to pay (and
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Section 9.05 in respect of Borrower, it will
pay) to the Administrative Agent at the Payment Office such additional amounts
of cash, to be held as security for Borrower's reimbursement obligations in
respect of Letters of Credit then outstanding equal to the aggregate Stated
Amount of all Letters of Credit then outstanding; and (v) apply any amounts held
as cash collateral pursuant to Section 4.02 or this Section 9 to repay
Obligations.
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SECTION 10
DEFINITIONS
As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined terms in this
Agreement shall include in the singular number the plural and in the plural the
singular:
"Adjusted Commitment" for each Non-Defaulting Bank shall mean
at any time the product of such Bank's Adjusted Percentage and the Adjusted
Total Commitment.
"Adjusted Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank such Bank's Percentage and (y) at a time when a
Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii)
for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Commitment at such time by the Adjusted Total Commitment at
such time, it being understood that all references herein to Commitments and the
Adjusted Total Commitment at a time when the Total Commitment or Adjusted Total
Commitment, as the case may be, has been terminated shall be references to the
Commitments or Adjusted Total Commitment, as the case may be, in effect
immediately prior to such termination; provided, however, that (A) no Bank's
Adjusted Percentage shall change upon the occurrence of a Bank Default from that
in effect immediately prior to such Bank Default if, after giving effect to such
Bank Default and any repayment of Loans at such time pursuant to Section
4.02(A)(a) or otherwise, the sum of (i) the aggregate outstanding principal
amount of Revolving Credit Loans of all Non-Defaulting Banks plus (ii) the
Letter of Credit Outstandings, exceeds the Adjusted Total Commitment; (B) the
changes to the Adjusted Percentage that would have become effective upon the
occurrence of a Bank Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Bank Default on which the sum of (i) the aggregate
outstanding principal amount of the Revolving Credit Loans of all Non-Defaulting
Banks plus (ii) the Letter of Credit Outstandings is equal to or less than the
Adjusted Total Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted
Percentage is changed pursuant to the preceding clause (B) and (ii) any
repayment of such Bank's Revolving Credit Loans, or of Unpaid Drawings with
respect to Letters of Credit, that were made during the period commencing after
the date of the relevant Bank Default and ending on the date of such change to
its Adjusted Percentage must be returned to Borrower as a preferential or
similar payment in any bankruptcy or similar proceeding of Borrower, then the
change to such Non-Defaulting Bank's Adjusted Percentage effected pursuant to
said clause (B) shall be reduced to that positive change, if any, as would have
been made to its Adjusted Percentage if (x) such repayments had not been made
and (y) the maximum change to its Adjusted Percentage would have resulted in the
sum of the outstanding principal of Revolving Credit Loans made by such Bank
plus such Bank's new Adjusted Percentage of the outstanding principal amount of
Letter of Credit Outstandings equaling such Bank's Commitment at such time.
"Adjusted Total Commitment" shall mean at any time the Total
Commitment less the aggregate Commitments of all Defaulting Banks.
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"Administrative Agent" - see the first paragraph of this
Agreement; this term shall include any successor to the Administrative Agent
appointed pursuant to Section 11.09.
"Affected Eurodollar Loan" - see Section 4.02(B).
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agents" see the first paragraph of this Agreement.
"Agreement" shall mean this Credit Agreement, as the same may
be from time to time further modified, amended and/or supplemented.
"Applicable Base Rate Margin" shall be equal to zero, as of
the Closing Date.
"Applicable Eurodollar Margin" shall mean the following: if
the total Loans outstanding (including issued Letters of Credit) equal or exceed
20% of the Total Commitment, 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 .325%
BBB+ / Baa1 .36%
BBB / Xxx0 .00%
XXX- / Xxx0 .50%
BB+ / Ba1 .70%
If the total Loans outstanding are less than 20% of the Total Commitment, 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:
EURODOLLAR
RATING MARGIN
------------ ----------
A- / A3 .250%
BBB+ / Baa1 .285%
BBB / Xxx0 .000%
XXX- / Xxx0 .425%
BB+ / Ba1 .625%
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In all cases, the relevant Rating shall be applicable to all Loans
outstanding from such date forward, even if such change occurs during an
Interest Period. Such change shall not cause any retroactive change in the
amount of interest accruing during existent Interest Rate Periods prior thereto
but shall cause a change in the interest accruing during the remainder of such
Interest Period.
"Approved Bank" see the definition of "Cash Equivalents."
"Approved Company" see the definition of "Cash Equivalents."
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit 10.01A
hereto (appropriately completed).
"Attributable Indebtedness," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at the rate set forth or implicit in the terms of the lease
included in such transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended). In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
"Authorized Officer" shall mean any senior officer of Borrower
designated as such in writing to the Administrative Agent by Borrower.
"Available Unutilized Commitment" for each Bank, shall mean
the excess of (a) the Commitment of such Bank over (b) the sum of (x) the
aggregate outstanding principal amount of Revolving Credit Loans made by such
Bank, plus (y) an amount equal to such Bank's Adjusted Percentage of the Letter
of Credit Outstandings at such time.
"Bank" see the first paragraph of this Agreement.
"Bank Default" shall mean (a) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans or
to fund its portion of any unreimbursed payment under Section 2.05(c) or (b) a
Bank having notified the Administrative Agent and/or Borrower that it does not
intend to comply with the obligations under Section 1.01 or under Section
2.05(c), in the case of either (a) or (b) as a result of the appointment of a
receiver or
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conservator with respect to such Bank at the direction or request of any
regulatory agency or authority.
"Bankruptcy Code" - see Section 9.05.
"Base Rate" at any time shall mean the higher of (a) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate and (b) the
Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Benefit Arrangement" shall mean at any time an employee
benefit plan with the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Borrower to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Administrative Agent.
"Borrower" - see the first paragraph of this Agreement.
"Borrowing" shall mean the incurrence of one Type of Loan
pursuant to the Facility by Borrower from all of the Banks other than a
Defaulting Bank on a pro rata basis.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (a) for all purposes other than as
covered by clause (b) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market in
London.
"Capital Expenditures" shall mean, with respect to any Person,
without duplication, all expenditures by such Person which should be capitalized
in accordance with GAAP, including, without duplication, all such expenditures
with respect to fixed or capital assets (including, without limitation,
expenditures for maintenance and repairs which should be capitalized in
accordance with GAAP) and the amount of all Capitalized Lease Obligations
incurred by such Person.
"Capital Lease" as applied to any Person shall mean any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
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"Capital Stock" shall mean any and all shares, interests,
rights to purchase, warrants, options, participants or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited,
including any Preferred Stock.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of Borrower or any Subsidiary in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (a) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) having maturities of
not more than one year from the date of acquisition, (b) U.S. dollar denominated
time deposits, certificates of deposit and bankers' acceptances of (x) any Bank,
(y) any domestic commercial bank of recognized standing having capital and
surplus in excess of $500.0 million or (z) any Bank or bank (or the parent
company of such bank) whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank, an "Approved Bank"), in each case with
maturities of not more than one year from the date of acquisition, (c)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (a) above entered into with any bank
meeting the qualifications specified in clause (b) above, (d) commercial paper
issued by any Bank or Approved Bank or by the parent company of any Bank or
Approved Bank and commercial paper issued by, or guaranteed by, any industrial
or financial company with a short-term commercial paper rating of at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's (any such company, an "Approved Company"), or guaranteed by any
industrial company with a long term unsecured debt rating of at least A or A2,
or the equivalent of each thereof, from S&P or Moody's, as the case may be, and
in each case maturing within one year after the date of acquisition and (v)
investments in money market funds substantially all of whose assets are
comprised of securities of the type described in clauses (a) through (d) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean an event or series of events by
which (a) any person (as defined in Section 13(d)(3) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of more than 35% of the voting power of the then
outstanding Voting Stock of Borrower; or (b) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of Borrower (together with any new or replacement
directors whose election by the Board of Directors of Borrower or whose
nomination for election by Borrower's stockholders, was approved by a vote of at
least 66-2/3% of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of Borrower then in office.
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"Claims" - see the definition of "Environmental Claims."
"Closing Date" shall mean the date this Agreement is executed
as shown on page 1 hereof.
"Co-Agent" - see the first paragraph of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
Second Amended and Restated Effectiveness Date and any subsequent provisions of
the Code, amendatory thereof, supplemental thereto or substituted therefor.
"Commitment" shall mean, with respect to each Bank, the amount
set forth opposite such Bank's name in Annex I hereto as the same may be (x)
reduced from time to time pursuant to Sections 3.02, and/or 9 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 12.04.
"Commitment Commission" - see Section 3.01(a).
"Consolidated Cash Interest Expense" shall mean, for any
period, total cash interest expense (including that attributable to Capital
Leases, whether or not the Capitalized Lease Obligations under such Capitalized
Leases is included in Indebtedness) of Borrower and the Subsidiaries on a
consolidated basis during such period, including, without limitation, (i) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing during such period and (ii) all
capitalized cash interest during such period.
"Consolidated EBITDA" shall mean, for any period, (a) the sum
of the amounts for such period of (i) Consolidated Net Income, (ii) provisions
for taxes based on income, (iii) Consolidated Interest Expense, (iv)
amortization or write-off of deferred financing costs to the extent deducted in
determining Consolidated Net Income, (v) depreciation expense of Borrower and
the Subsidiaries, (vi) amortization expense of Borrower and the Subsidiaries,
and (vii) losses on sales of assets (excluding sales in the ordinary course of
business) and other extraordinary losses, less (b) the amount for such period of
gains on sales of assets (excluding sales in the ordinary course of business)
and other extraordinary gains, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(including the Loans) of Borrower and the Subsidiaries on a consolidated basis
as determined in accordance with GAAP, excluding (i) all Contingent Obligations
relating to the Indebtedness of any Person which such Indebtedness is included
in the calculation of Consolidated Indebtedness of Borrower and the Subsidiaries
and (ii)
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all Capitalized Lease Obligations under the Capitalized Lease (as in effect on
the Second Amended and Restated Effectiveness Date) of the Glomar Explorer Fleet
Rig (Official No. 547257).
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases whether or
not the Capitalized Lease Obligations under such Capitalized Lease is included
in Indebtedness) of Borrower and the Subsidiaries in accordance with GAAP on a
consolidated basis with respect to all outstanding Indebtedness of Borrower and
the Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing.
"Consolidated Net Income" shall mean for any period, the net
income (or loss) of Borrower and the Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP; provided, however, that there shall be excluded therefrom (i) except to
the extent of the amount of cash dividends or other cash distributions in
respect of Capital Stock paid to Borrower or a Subsidiary by any other Person
during such period out of funds legally available therefor, the net income (or
loss) of such other Person other than a Subsidiary and, (ii) except to the
extent included pursuant to clause (i) hereof, the net income (or loss) of any
other Person accrued or attributable to any period prior to the date it becomes
a Subsidiary or is merged into or consolidated with Borrower or any Subsidiary
or such other Person's property or Capital Stock (or a portion thereof) is
acquired by Borrower or any Subsidiary.
"Consolidated Net Tangible Assets" means the total amount of
assets (less applicable reserves and other properly deductible items) after
deducting (a) all current liabilities (excluding the amount of those which are
by their terms extendable or renewable at the option of the obligor to a date
more than 12 months after the date as of which the amount is being determined
and current maturities of long-term debt) and (b) all goodwill, tradenames,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, all as set forth on the most recent quarterly balance sheet
of the Borrower and its consolidated subsidiaries and determined in accordance
with GAAP.
"Consolidated Tangible Net Worth" shall mean, at any time, the
net tangible worth of Borrower and the Subsidiaries on a consolidated basis
determined in accordance with GAAP.
"Consolidated Total Capitalization" shall mean, at any time,
the consolidated total Indebtedness plus shareholders equity of Borrower and its
Subsidiaries.
"Contingent Obligations" shall mean as to any Person any
obligation of such Person guaranteeing or intending to guarantee any
Indebtedness, leases, Dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain Working Capital or equity capital of the primary obligor or
otherwise
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to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes and
any document executed in connection therewith.
"Credit Event" shall mean and include the making of a Loan or
the issuance of a Letter of Credit.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Disqualified Capital Stock" means any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable, at the option of the holder
thereof, in whole or in part, or exchangeable into Indebtedness on or prior to
the Maturity Date.
"Dividends" shall mean to declare or pay on the part of
Borrower or any Subsidiary any dividends (other than dividends payable solely in
Qualified Capital Stock of such Person (including pursuant to a shareholders'
rights plan)) or return any capital to, its stockholders or authorize or make
any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire, directly
or indirectly, for a consideration, any shares of any class of its Capital Stock
outstanding on the Closing Date or thereafter (or any warrants for or options or
stock appreciation rights in respect of any of such shares), or set aside any
funds for any of the foregoing purposes, or permit any Subsidiary to purchase or
otherwise acquire for consideration any shares of any class of the Capital Stock
of Borrower or any other Subsidiary, as the case may be, outstanding on the
Closing Date or thereafter; provided, however, that Dividends shall not include
the redemption of rights issued pursuant to a shareholders' rights agreement in
an amount per right not to exceed a de minimis amount.
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"Documentation Agent" - see the first paragraph of this
Agreement, this term shall include any successor to the current Documentation
Agent.
"Dollars" shall mean freely transferable lawful money of the
United States.
"Eligible Transferee" shall mean a commercial bank, financial
institution or other "accredited investor" (as defined by Regulation D of the
Securities Act).
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations of Governmental
Authorities or third parties or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any such
Environmental Law (hereafter, "Claims"), including, without limitation, (a) any
and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged damage
or injury or threat of injury or damage to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, guide, policy,
treaty or convention and rule of common law now or hereafter in effect and in
each case as amended and having legally binding effect on, and enforceable
against, private parties, and any judicial or administrative interpretation
thereof, including, without limitation, any judicial or administrative order,
consent decree or judgment, relating to pollution or protection of the
environment or health or safety or Release or threat of Release or treatment,
storage, transport, generation, handling or disposal of any Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Deepwater Port Act, as amended,
33 U.S.C. xx.xx. 1501 et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
ss. 7401 et seq.; the Clean Air Act, as amended, 42 U.S.C. ss. 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. ss. 3808 et seq.; the Oil Pollution Act of
1990, 33 U.S.C. ss. 2701 et seq. and any state and local or foreign counterparts
or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Group" shall mean Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with Borrower
or any Subsidiary, are treated as a single employer under Section 414 of the
Code.
"Eurodollar Loans" shall mean each Loan bearing interest at
the rates provided in Section 1.08(b).
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"Eurodollar Rate" shall mean with respect to each Interest
Period for a Eurodollar Loan, (i) the offered quotation to first-class banks in
the interbank Eurodollar market by the Administrative Agent for dollar deposits
of amounts in same day funds comparable to the outstanding principal amount of
the Eurodollar Loan of the Administrative Agent for which an interest rate is
then being determined with maturities comparable to the Interest Period to be
applicable to such Eurodollar Loan, determined as of 10:00 A.M. (New York time)
on the date which is two Business Days prior to the commencement of such
Interest Period divided (and rounded upward to the next whole multiple of 1/16
of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" - see Section 9.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Facility" shall mean all Loans, Letter of Credit and other
accommodations available under the credit facility established under this
Agreement, evidenced and limited by the Total Commitment.
"Facing Fee" - see Section 3.01(c).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or
referred to in, Section 3.01.
"Fleet Rigs" shall mean the Glomar Explorer (Official No.
547527) and any offshore drilling rig or drilling vessel owned from time to time
by Borrower or any subsidiary.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by Borrower or
any one or more of its Subsidiaries primarily for the benefit of employees of
Borrower or such Subsidiaries residing outside the United States of America,
which
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plan, fund or other similar program provides, or results in, retirement income,
a deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA.
"Funded Indebtedness" means all Indebtedness (including
Indebtedness incurred under any revolving credit, letter of credit or working
capital facility) that matures by its terms, or that is renewable at the option
of any obligor thereon to a date more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect on the Closing Date; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, board, bureau, central bank,
commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic, or any
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Hazardous Materials" shall mean any pollutant, contaminant,
toxic, hazardous, extremely hazardous or radioactive substance, constituent or
waste, or any other constituent, waste, chemical material, compound or substance
including, without limitation, petroleum including without limitation crude oil
or any fraction thereof, or any petroleum product, subject to regulation under
any Environmental Law.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness of such Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), (b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement
obligations with respect thereto), other than standby letters of credit,
performance bonds, surety bonds and other obligations issued by or for the
account of such Person in the ordinary course of business, to the extent not
drawn or, to the extent drawn, if such drawing is reimbursed not later than the
third Business Day following demand for reimbursement, (d) all obligations of
such Person to pay the deferred and unpaid purchase price of property or
services, except trade payables and accrued expenses incurred in the ordinary
course of business, (e) all Capitalized Lease Obligations of such Person, (f)
all Indebtedness of others secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person (provided that if the
obligations so secured have not been assumed in full by such Person or are not
otherwise such Person's legal liability in full, then such obligations shall be
deemed to be in an amount equal to the greater of (i) the lesser of (A) the full
amount of such obligations and (B) the fair market value of such assets, as
determined in good faith by the Board of Directors of such Person, which
determination shall be evidenced by a Board Resolution, and (ii)
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the amount of obligations as have been assumed by such Person or which are
otherwise such Person's legal liability), and (g) all Indebtedness of others
(other than endorsements in the ordinary course of business) guaranteed by such
Person to the extent of such guarantee.
"Indenture" shall mean the Indenture dated as of September 1,
1997 between Borrower and Wilmington Trust Company, as trustee, under which the
issuance of $300,000,000.00 of Senior Unsecured Notes by the Borrower was
authorized, as the same may be amended, modified or supplemented from time to
time.
"Initial Borrowing Date" shall mean the date upon which the
initial Borrowing of Loans occurs.
"Intellectual Property" - see Section 6.14.
"Interest Period" with respect to any Loan shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar agreement or arrangement designed to protect Borrower or any
Subsidiary against interest rate risk.
"Invitation to Bid" - see Section 1.03.
"Joint Venture" means (a) with respect to properties located
in the United States, any partnership, corporation or other entity, in which up
to and including 50% of the partnership interests, outstanding voting stock or
other equity interests is owned, directly or indirectly, by the Borrower and/or
one or more Subsidiaries, and (b) with respect to properties located outside the
United States, any partnership, corporation or other entity, in which up to and
including 60% of the partnership interests, outstanding voting stock or other
equity interests is owned, directly or indirectly, by the Borrower and/or one or
more Subsidiaries.
"Leasehold" of any Person shall mean all of the right, title
and interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"L/C Supportable Obligations" shall mean such obligations of
Borrower or any Subsidiary as are not inconsistent with the policies of the
Letter of Credit Issuer determined reasonably and in good faith.
"Letter of Credit" - see Section 2.01(a).
"Letter of Credit Fee" - see Section 3.01(b).
"Letter of Credit Issuer" shall mean BTCo.
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"Letter of Credit Outstandings" shall mean, at any time, the
sum of, without duplication, (a) the aggregate Stated Amount of all outstanding
Letters of Credit and (b) the aggregate amount of all Unpaid Drawings in respect
of all Letters of Credit.
"Letter of Credit Request" - see Section 2.03(a).
"Lien" means any mortgage, pledge, lien, encumbrance, charge
or security interest (including any agreement to give any of the foregoing). For
purposes of this Agreement, the Borrower or any Subsidiary of the Borrower shall
be deemed to own, subject to a Lien, any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease Obligation or other title retention agreement
relating to such asset.
"Loan" - see Section 1.01(a). Loans shall mean the Revolving
Credit Loans, except as otherwise specifically set forth herein.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Adverse Effect" shall mean a material adverse effect
on the performance, business, properties, assets, operations, nature of assets,
liabilities, condition (financial or otherwise) or prospects of Borrower and the
Subsidiaries taken as a whole.
"Maturity Date" shall mean the date that is three hundred
sixty-four (364) days from the Closing Date.
"Minimum Borrowing Amount" shall mean (a) for Loans maintained
as Base Rate Loans, $1.0 million and increments of $500,000 over such amount,
and (b) for Loans maintained as Eurodollar Loans, $5.0 million and increments of
$1.0 million over such amount.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. and its
successors.
"Multiemployer Plan" shall mean at any time an employee
pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which
any member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Non-Defaulting Bank" shall mean each Bank other than a
Defaulting Bank.
"Note" or "Notes" - see Sections 1.05(a) and 1.05(b).
"Notice of Borrowing" - see Section 1.03.
"Notice of Conversion" - see Section 1.06.
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"Notice Office" shall mean the office of the Administrative
Agent at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the
Administrative Agent may designate to Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Administrative Agent or any Bank pursuant to the terms of any
Credit Document.
"Pari Passu Indebtedness" means any Indebtedness of the
Borrower, whether outstanding on the Closing Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall be subordinated in
right of payment to the Loans.
"Participant" - see Section 2.05(a).
"Payment Office" shall mean the office of the Administrative
Agent at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the
Administrative Agent may designate to Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor thereto.
"Percentage" shall mean for each Bank the percentage obtained
by dividing such Bank's Commitment by the Total Commitment; provided, however,
that if the Total Commitment has been terminated, the Percentage of each Bank
shall be determined by dividing such Bank's Commitment immediately prior to such
termination by the Total Commitment immediately prior to such termination
"Permitted Liens" shall mean (a) Liens existing on the Closing
Date; (b) Liens on property or assets of, or any shares of stock of, or other
equity interests in, or indebtedness of, any Person existing at the time such
Person becomes a Subsidiary of the Borrower or at the time such Person is merged
into or consolidated with the Borrower or any of its Subsidiaries or at the time
of a sale, lease or other disposition of the properties of a Person (or a
division thereof) as an entirety or substantially as an entirety to the Borrower
or a Subsidiary; (c) Liens in favor of the Borrower or any of its Subsidiaries;
(d) Liens in favor of governmental bodies to secure progress or advance
payments; (e) Liens securing industrial revenue or pollution control bonds; (f)
Liens on assets existing at the time of acquisition thereof, securing all or any
portion of the cost of acquiring, constructing, improving, developing or
expanding such assets or securing Indebtedness incurred prior to, at the time
of, or within twelve (12) months after, the later of the acquisition, the
completion of construction, improvement, development or expansion or the
commencement of commercial operation of such assets, for the purpose of (i)
financing all or any part of the purchase price of such assets or (ii) financing
all or any part of the cost of construction, improvement, development or
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expansion of any such assets; (g) Liens on contracts, agreements or instruments
of a Subsidiary entered into in connection with a transaction referred to in
clause (f); (h) statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens arising
in the ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings; (i)
Liens on the stock, partnership or other equity interest of the Borrower or any
Subsidiary in any Joint Venture or any Subsidiary that owns an equity interest
in such Joint Venture to secure Indebtedness, provided the amount of such
Indebtedness is contributed and/or advanced solely to such Joint Venture; and
(j) any extensions, substitutions, replacements or renewals in whole or in part
of a Lien enumerated in clauses (a) through (i) above.
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group.
"Preferred Stock" in any Person, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
Dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over Capital
Stock of any other class in such Person.
"Prime Lending Rate" shall mean the rate which Bankers Trust
Company announces from time to time as its prime lending rate, the Prime Lending
Rate to change when and as such prime lending rate changes. The Prime Lending
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Bankers Trust Company may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.
"Principal Property" means any drilling rig or drillship, or
integral portion thereof, owned or leased by the Borrower or any Subsidiary and
used for drilling offshore oil and gas xxxxx, which, in the opinion of the Board
of Directors, is of material importance to the business of the Borrower and its
Subsidiaries taken as a whole, but no such drilling rig or drillship, or portion
thereof, shall be deemed of material importance if its net book value (after
deducting accumulated depreciation) is less than 2% of Consolidated Net Tangible
Assets.
"Qualified Capital Stock" in any Person means any Capital
Stock in such Person other than any Disqualified Capital Stock.
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"Rating" shall mean the Indebtedness quality rating most
recently published in respect of the Borrower's long-term Indebtedness by
Moody's or S&P; provided, in the event that Moody's and S&P provide different
Ratings of the Borrower, all calculations of Fees and Applicable Margins shall
utilize the higher Rating, provided, further, if the Ratings are two (2) or more
grades apart, the Rating one level above the lowest shall be utilized for all
calculations and computations.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as amended, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all of the right,
title and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Register" - see Section 12.16.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, leaching or migration into the
environment or into, out of or through any structure, property, pipeline, air,
soil, subsurface strata, surface water, or groundwater or wetlands.
"Replaced Bank" - see Section 1.13.
"Replacement Bank" - see Section 1.13.
"Required Banks" shall mean Non-Defaulting Banks whose
outstanding Commitments (or, if after the Total Commitment has been terminated,
outstanding Loans and Adjusted Percentage of Letter of Credit Outstandings)
constitute greater than 50% of the sum of the Adjusted Total Commitment (or, if
after the Total Commitment has been terminated, the total outstanding Loans of
Non-Defaulting Banks and the aggregate Adjusted Percentages of all Non-
Defaulting Banks of the total Letter of Credit Outstandings at such time).
"Revolving Credit Loan" - see Section 1.01(a).
"S&P" shall mean Standard & Poor's Ratings Group and its
successors.
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"Sale/Leaseback Transaction" means any arrangement with any
Person pursuant to which the Borrower or any Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Borrower or the
Subsidiary to such Person, other than (a) temporary leases for a term, including
renewals at the option of the lessee, of not more than five years, (b) leases
between the Borrower and a Subsidiary or between Subsidiaries, (c) leases of
Principal Property executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction or improvement, or the
commencement of commercial operation of the Principal Property, and (d)
arrangements pursuant to any provision of law with an effect similar to the
former Section 168(f)(8) of the Internal Revenue Code of 1954.
"SEC" shall mean the Securities and Exchange Commission or
any successor thereto.
"Section 4.04(b) (ii) Certificate" - see Section 4.04(b)(ii).
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Standby Letter of Credit" - see Section 2.01(a).
"Stated Amount" of each Letter of Credit shall mean the
maximum available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met).
"Subsidiary" of any Person shall mean and include (a) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (b) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has an equity interest in excess of that for the respective type
of entity referenced in the definition of Joint Ventures at the time. Unless
otherwise expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of Borrower.
"Syndication Agent" - see the first paragraph to this
Agreement, this term shall include any successor to the current Syndication
Agent.
"Taxes" - see Section 4.04(a).
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks, which shall equal a maximum of
$150,000,000.00, subject to reductions as herein provided.
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"Total Unutilized Commitment" shall mean, at any time, (a) the
Total Commitment at such time less (b) the sum of the aggregate principal amount
of all Loans at such time, plus the Letter of Credit Outstandings at such time.
"Trade Letter of Credit" - see Section 2.01(a).
"Type" shall mean any type of Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or Eurodollar
Loan.
"Unfunded Liabilities" shall mean, with respect to any Plan at
any time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a current liability basis under Section 412(l)(7)
of the Code, exceeds (ii) the fair market value of all Plan assets allocable to
such liabilities under Title I of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan.
"Unpaid Drawing" - see Section 2.04(a).
"Voting Stock" shall mean, with respect to any corporation,
the outstanding stock of all classes (or equivalent interests) which ordinarily,
in the absence of contingencies, entitles holders thereof to vote for the
election of directors (or Persons performing similar functions) of such
corporation, even though the right so to vote has been suspended by the
happening of such a contingency.
"Wholly-Owned Subsidiary" of any Person shall mean any
Subsidiary of such Person to the extent all of the Capital Stock or other
ownership interests in such Subsidiary, other than directors' qualifying shares,
is owned directly or indirectly by such Person. Unless otherwise expressly
provided, all references herein to "Wholly-Owned Subsidiary" shall mean a
Wholly-Owned Subsidiary of Borrower.
"Working Capital" shall mean an amount determined on a
consolidated basis in accordance with GAAP) determined for Borrower and the
Subsidiaries equal to the sum of all current assets (other than cash) less the
sum of all current liabilities (other than the current portion of any
Indebtedness that was long-term Indebtedness when incurred).
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex or facsimile transmission.
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SECTION 11
THE AGENTS
11.01 Appointment. The Banks hereby designate the Agents named
in the first paragraph on page one hereof as Agents to act as specified herein
and in the other Credit Documents. Each Bank hereby irrevocably authorizes, and
each holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, BTCo as the Administrative Agent to take such action
on its behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Administrative Agent may perform any of its duties hereunder by or through
its respective officers, directors, agents, employees or Affiliates.
11.02 Nature of Duties. None of the Agents shall have any
duties or responsibilities except those expressly set forth in this Agreement
and the other Credit Documents. Specifically, without limitation, neither the
Administrative Agent nor any of its respective officers, directors, agents,
employees or Affiliates shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
11.03 Lack of Reliance on the Agents. Independently and
without reliance upon the Agents, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make all of its own
independent investigation of the financial condition and affairs of Borrower and
the Subsidiaries in connection with the making and the continuance of the Loans
and issuance and/or participation in Letters of Credit and the taking or not
taking of any action in connection herewith and (b) its own appraisal of the
creditworthiness of Borrower and the Subsidiaries and, except as expressly
provided in this Agreement, the Agents shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Bank
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. The Agents shall not be responsible to any Bank or
the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of Borrower and the Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this
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Agreement or any other Credit Document, or the financial condition of Borrower
and the Subsidiaries or the existence or possible existence of any Default or
Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Bank nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent (which may be
counsel for Borrower).
11.06 Indemnification. To the extent the Agents are not
reimbursed and indemnified by Borrower, the Banks will reimburse and indemnify
the Agents, in proportion to their respective "percentages" as used in
determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Agents in performing their respective duties
hereunder or under any other Credit Document, in any way relating to or arising
out of this Agreement or any other Credit Document; provided, however, that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from either of the Agents' gross negligence or willful misconduct.
11.07 The Agents in Their Individual Capacity. With respect to
its obligation to make Loans under this Agreement, the Agents shall have the
rights and powers specified herein for a "Bank" and may exercise the same rights
and powers as though it were not performing the duties specified herein; and the
term "Banks," "Required Banks," "holders of Notes" or any similar terms shall,
unless the context clearly otherwise indicates, include the Agents in their
individual capacity. The Agents may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with Borrower
or its Subsidiaries or any Affiliate thereof as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Borrower or any Subsidiary for services in connection with this Agreement and
otherwise without having to account for the same to the Banks.
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11.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
11.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks
shall appoint a successor Administrative Agent hereunder or thereunder who shall
be a commercial bank or trust company reasonably acceptable to Borrower.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent, with
the consent of Borrower, shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Banks appoint a successor Administrative Agent as provided
above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Banks shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Banks
appoint a successor Administrative Agent as provided above.
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SECTION 12
MISCELLANEOUS.
12.01 Indemnification, Payment of Expenses, etc. Borrower
agrees to (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the negotiation, preparation, execution
and delivery of the Credit Documents and the documents and instruments referred
to therein and any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees and disbursements of all counsel to the
Administrative Agent, and of the Administrative Agent itself, and, after the
occurrence and during the continuance of an Event of Default, each of the Banks
in connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the actual
reasonable fees and disbursements of counsel for the Administrative Agent and,
after the occurrence and during the continuance of an Event of Default for each
of the Banks); (ii) pay and hold each of the Banks harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to the Administrative Agent or such Bank) to pay
such taxes; and (iii) indemnify each Bank (including in its capacity as the
Administrative Agent or a Letter of Credit Issuer), its officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all losses, liabilities, claims, damages, expenses, fines or
penalties incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not any Bank is a party thereto) related to the entering
into and/or performance of any Credit Document or the use of the proceeds of any
Loans hereunder or the consummation of any transactions contemplated in any
Credit Document, whether initiated by Borrower or any other Person (other than
the Office of the Comptroller of Currency, the FDIC or other regulatory
authority having jurisdiction over any Bank if not related to any action or
inaction by Borrower or any Subsidiary or any other event or occurrence relating
to Borrower or any Subsidiary), including, without limitation, the actual
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified) or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water, groundwater, surface or subsurface of any Real Property,
offshore drilling rig, facility or location at any time owned or operated by
Borrower or any Subsidiary, the generation, storage, transportation, treatment,
release or disposal of Hazardous Materials at on, under or from any Real
Property, offshore drilling rig, facility or location at any time owned or
operated by Borrower or any Subsidiary, the noncompliance of Borrower or any
Subsidiary, or of any Real Property, offshore drilling rig, facility or location
at any time owned or operated by Borrower or any Subsidiary with any
Environmental Law or any Environmental Claim asserted against Borrower or any
Subsidiary with any Environmental Law or any Real Property, offshore drilling
rig, facility or location at any time owned or operated by Borrower or any
Subsidiary, including, in each case, without limitation, the actual reasonable
fees and disbursements of counsel and other consultants incurred in connection
with any such investigation, litigation or other proceeding (but excluding any
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losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or wilful misconduct of the Person to be
indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless the Administrative Agent or any Bank set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, if an Event of Default has occurred and is
continuing, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to Borrower or
to any other Person, any such notice being hereby expressly waived, to the
extent permitted by applicable law, to set off and to appropriate and apply any
and all deposits (general or special) and any other Indebtedness at any time
held or owing by such Bank (including without limitation by branches and
agencies of such Bank wherever located) to or for the credit or the account of
Borrower against and on account of the Obligations and liabilities of Borrower
to such Bank under any Credit Document, including, without limitation, all
interests in Obligations of Borrower purchased by such Bank pursuant to Section
12.06(b), and all other claims of any nature or description arising out of or
connected with any Credit Document, irrespective of whether or not such Bank
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
12.03 Notices. (a) Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telex or telecopier communication) and mailed, telexed,
telecopied or delivered, if to Borrower or any Subsidiary, at the address
specified opposite its signature below or in the other relevant Credit
Documents, as the case may be; if to any Bank, at its address specified for such
Bank on Annex II hereto; or, at such other address as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
communications shall be effective when received and, in the case of notice by
telecopier, after confirmation of such receipt has been given by the recipient,
excluding by way of automatic receipt produced by telecopier.
(b) Without in any way limiting the obligation of Borrower
to confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or any Letter of Credit Issuer, as the case may be, may
prior to receipt of written confirmation act without liability upon the basis of
such telephonic notice, believed by the Administrative Agent or such Letter of
Credit Issuer in good faith to be from an Authorized Officer of Borrower. In
each such case, Borrower hereby waives the right to dispute the Administrative
Agent's or such Letter of Credit Issuer's record of the terms of such telephonic
notice.
12.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, that Borrower
may not assign or transfer any of its rights or obligations
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hereunder without the prior written consent of the Banks. Each Bank may at any
time grant participations in any of its rights hereunder or under any of the
Notes to another financial institution; provided, however, that in the case of
any such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by Borrower hereunder shall be determined as if such
Bank had not sold such participation, except that the participant shall he
entitled to the benefits of Sections 1.10 and 4.04 of this Agreement to the
extent that such Bank would be entitled to such benefits if the participation
had not been entered into or sold; provided, further, however, that no Bank
shall transfer, grant or assign any participation under which the participant
shall have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Loan or Note in which such
participant is participating or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in
the Total Commitment, or a mandatory prepayment, shall not constitute a change
in the terms of any Commitment) or (ii) consent to the assignment or transfer by
Borrower of any of its rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, (i) any Bank may assign
all or a portion of its outstanding Commitment and its rights and obligations
hereunder to its Affiliate or to another Bank, and (ii) with the consent of the
Administrative Agent, each Letter of Credit Issuer and Borrower (which consent
shall not be unreasonably withheld or delayed and which consent of Borrower need
not be obtained at any time that a Default or Event of Default shall have
occurred and be continuing), any Bank may assign all or a portion of its
outstanding Commitment and its rights and obligations hereunder to one or more
Eligible Transferees. Unless otherwise agreed to by Borrower, no assignment
pursuant to the immediately preceding sentence shall to the extent such
assignment represents an assignment to an institution other than one or more
Banks hereunder, be in an aggregate amount less than $5.0 million unless the
entire Commitment of the assigning Bank is so assigned. If any Bank so sells or
assigns all or a part of its rights hereunder or under the Notes, any reference
in this Agreement or the Notes to such assigning Bank shall thereafter refer to
such Bank and to the respective assignee to the extent of their respective
interests and the respective assignee shall have, to the extent of such
assignment (unless otherwise provided therein), the same rights and benefits as
it would if it were such assigning Bank. Each assignment pursuant to this
Section 12.04(b) shall be effected by the assigning Bank and the assignee Bank
executing an Assignment and Assumption Agreement. In the event of any such
assignment (x) to a commercial bank or other financial institution not
previously a Bank hereunder, either the assigning or the assignee Bank shall pay
to the Administrative Agent a nonrefundable assignment fee of $3,500 and (y) to
a Bank, either the assigning or assignee Bank shall pay to Administrative Agent
a nonrefundable assignment fee of $1,500, and at the time of any assignment
pursuant to this Section 12.04(b), (A) Annex I hereto shall be deemed to be
amended to reflect the Commitment of
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the respective assignee, and of the other Banks, and (B) if any such assignment
occurs after the Initial Borrowing Date, if requested by the assigning Bank and
the assignee Bank, Borrower will issue new Notes to the respective assignee and
to the assigning Bank in conformity with the requirements of Section 1.05. Each
Bank and Borrower agree to execute such documents (including, without
limitation, amendments to this Agreement and the other Credit Documents) as
shall be necessary to effect the foregoing. Nothing in this clause (b) shall
prevent or prohibit any Bank from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Bank from such Federal
Reserve Bank.
(c) Notwithstanding any other provisions of this Section
12.04, no transfer or assignment of the interests or obligations of any Bank
hereunder or any grant of participation therein shall be permitted if such
transfer, assignment or grant would require Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any
State.
(d) Each Bank initially party to this Agreement hereby
represents, and each Person that became a Bank pursuant to an assignment
permitted by this Section 12 will, upon its becoming party to this Agreement,
represent that if it is a commercial lender, other financial institution or
other "accredited" investor (as defined in SEC Regulation D) which makes loans
in the ordinary course of its business and that if it will make or acquire Loans
for its own account in the ordinary course of such business; provided, however,
that subject to the preceding clauses (a) and (b), the disposition of any
promissory notes or other evidences of or interests in Indebtedness held by such
Bank shall at all times be within its exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank in exercising any right, power
or privilege under any Credit Document and no course of dealing between Borrower
or any Subsidiary and the Administrative Agent or any Bank shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege under any Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Administrative Agent or any
Bank would otherwise have. No notice to or demand on Borrower or any Subsidiary
in any case shall entitle Borrower or any Subsidiary to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or the Banks to any other or further action
in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of Borrower or
any Subsidiary in respect of any Obligations of Borrower or any Subsidiary
hereunder, if it shall distribute such payment to the Banks (other than any Bank
that has expressly waived its right to receive its pro rata share thereof) pro
rata based upon their respective shares, if any, of the Obligations with respect
to which such payment was received.
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(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of Borrower or any Subsidiary, respectively, to such Banks in such amount as
shall result in a proportional participation by all of the Banks in such amount;
provided, however, that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 12.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Banks pursuant hereto and unless otherwise specified
herein all calculations made hereunder shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved for Borrower and
its Subsidiaries on a consolidated basis (except as set forth in the notes
thereto or as otherwise disclosed in writing by Borrower to the Banks);
provided, however, that (x) except as otherwise specifically provided herein,
all computations determining compliance with Section 8, including definitions
used therein, shall utilize accounting principles and policies in effect at the
time of the preparation of, and in conformity with those used to prepare, the
September 30, 1997 historical financial statements of Borrower delivered to the
Banks and (y) that if at any time the computations determining compliance with
Section 8 utilize accounting principles different from those utilized in the
financial statements furnished to the Banks, such financial statements shall be
accompanied by reconciliation worksheets.
(b) All computations of interest and Fees hereunder shall be
made on the actual number of days elapsed over a year of 360 days.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL; USURY SAVINGS CLAUSE. (a) THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE
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AFORESAID COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO BORROWER LOCATED OUTSIDE NEW
YORK CITY AND BY HAND DELIVERY TO BORROWER LOCATED WITHIN NEW YORK CITY, AT ITS
ADDRESS FOR NOTICES PURSUANT TO SECTION 12.03, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN
ANY OTHER JURISDICTION.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IF IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN
THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(d) NOTWITHSTANDING ANYTHING ELSE HEREIN CONTAINED, BORROWER
SHALL NEVER BE REQUIRED TO PAY ANY SUMS HEREUNDER THAT CONSTITUTE INTEREST AND
THAT WOULD REQUIRE OR PERMIT PAYMENT OF INTEREST AT A RATE HIGHER THAN THE
MAXIMUM NON-USURIOUS RATE ALLOWED BY APPLICABLE LAW.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, which may be delivered in original or facsimile form, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Borrower and the
Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on
the date (the "Closing Date") on which (a) Borrower and each of the Required
Banks shall have signed and delivered to the Agent a copy hereof, whether the
same or different copies and whether delivered in original form or by facsimile
and (b) each of the conditions listed in Section 5 shall have been fulfilled to
the reasonable satisfaction of the Administrative Agent.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.12 Amendment or Waiver. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless
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such change, waiver, discharge or termination is in writing signed by Borrower
and the Required Banks; provided, however, that no such change, waiver,
discharge or termination shall, without the consent of each Bank (other than a
Defaulting Bank) affected thereby and, with respect to clause (vi) below, the
consent of the Administrative Agent (i) extend the Maturity Date, or reduce the
rate or extend the time of payment of interest (other than as a result of
waiving the applicability or any post-default increase in interest rates) or
Fees thereon, or reduce the principal amount thereof, (ii) increase the
Commitment of such Bank over the amount thereof then in effect (if it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment shall not constitute a change in the terms of
any Commitment of any Bank), (iii) amend, modify or waive any provision of this
Section, (iv) reduce the percentage specified in the definition of Required
Banks (if it being understood that, with the consent of the Required Banks,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Banks on substantially the same basis as the
Commitments are included on the Second Amended and Restated Effectiveness Date),
or (v) consent to the assignment or transfer by Borrower of any of its rights
and obligations under this Agreement. No provision of Section 2 or 11, or any
other provisions relating to any Letter of Credit Issuer or the Administrative
Agent may be modified without the consent of such Letter of Credit Issuer or the
Administrative Agent, respectively.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clause (i), (iii), (iv), (v) or (vi) of the proviso to Section
12.12(a), the consent of the Required Banks is obtained but the consent of one
or more of such other Banks whose consent is required is not obtained, then
Borrower shall have the right to replace each such non-consenting Bank or Banks
(so long as all non-consenting Banks are so replaced) with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination; provided, however, that Borrower shall not have the
right to replace a Bank solely as a result of the exercise of such Bank's rights
(and the withholding of any required consent by such Bank) pursuant to clause
(ii) of the proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 4.04, 11.07 or 12.01 shall survive
the execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or Affiliate of
such Bank; provided, however, that Borrower shall not be responsible for costs
arising under Section 1.10 or 4.04 resulting from any such transfer (other than
a transfer pursuant to Section 1.12(a)) to the extent not otherwise applicable
to such Bank prior to such transfer.
12.15 Confidentiality. The Banks shall hold all non-public
information obtained pursuant to the requirements of this Agreement confidential
and in any event may make disclosure reasonably required by any bona fide
transferee or participant in connection with the contemplated transfer of any
Loans or participation therein (so long as such transferee or participant agrees
to be
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bound by the provisions of this Section 12.15) or as required or requested by
any governmental agency or representative thereof or pursuant to legal process;
provided, however, that, unless specifically prohibited by applicable law or
court order, each Bank shall notify Borrower of any request by any governmental
agency or representative thereof (other than any such request in connection with
an examination of the financial condition of such Bank by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; provided, however, that in no event shall any Bank be
obligated or required to return any materials furnished by Borrower or any
Subsidiary.
12.16 Registry. Borrower hereby designates the Administrative
Agent to serve as Borrower's agent, solely for purposes of this Section 12.16,
to maintain a register (the "Register") on which if it will record the
Commitments from time to rime of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans of
each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect Borrower's obligations in respect of such Loans.
With respect to any Bank, the transfer of the Commitments of such Bank and the
rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
12.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank.
12.17 Intentionally Omitted.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
Address: GLOBAL MARINE INC.
000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000 By: /s/ W. XXXX XXXXX
--------------------- ------------------------------
Telephone: (000) 000-0000 W. Xxxx Xxxxx
--------------------- Vice President and Treasurer
Attention: W. Xxxx Xxxxx
------------------------------
80
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Principal
81
ABN AMRO BANK, N.V., HOUSTON
AGENCY, Individually and as a
Co-Agent
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Vice President
By: /s/ XXXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
82
SOCIETE GENERALE, SOUTHWEST
AGENCY,
Individually and as a Co-Agent
By: /s/ XXXXXXX X. XXXXX
------------------------------
XXXXXXX X. XXXXX
Vice President
83
ANNEX I
COMMITMENTS
BANK COMMITMENT
---- ----------
Bankers Trust Company $ 50,000,000.00
ABN AMRO Bank, N.V. 50,000,000.00
Societe Generale, Southwest
Agency 50,000,000.00
----------------
Total $ 150,000,000.00
================
84
ANNEX II
BANK ADDRESSES
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
ABN AMRO Bank, N.V., Houston Agency Xxxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Societe Generale, Southwest Agency 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
