EXHIBIT 10.7
THIRD AMENDMENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This Third Amendment to Credit Agreement and Loan
Documents (this "AMENDMENT") dated as of October 15, 1999 is among
GLOBAL MARINE INC., a Delaware corporation (the "BORROWER"), the
banks named on the signature pages hereto (together with their
respective successors and assigns in such capacity, the "BANKS"),
BANKERS TRUST COMPANY, as administrative agent for the Banks
(together with its successors and assigns in such capacity, the
"ADMINISTRATIVE AGENT"), ABN AMRO BANK, N.V., HOUSTON AGENCY, as
syndication agent for the Banks, SOCIETE GENERALE, SOUTHWEST
AGENCY, as documentation agent for the Banks (all of the agents,
collectively, together with their successors and assigns in such
capacity, the "AGENTS").
PRELIMINARY STATEMENT
The Borrower, the Banks and the Agents have entered into
that certain Credit Agreement dated as of January 29, 1998 (as
amended or restated from time to time, the "CREDIT AGREEMENT").
The Borrower, the Banks and the Agents wish to amend
further the Credit Agreement and execute this Amendment to reflect
same.
NOW THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties agree as follows:
Section 1. DEFINITIONS. Unless otherwise defined in this
Amendment, each capitalized term used in this Amendment has the
meaning assigned to such term in the Credit Agreement.
Section 2. AMENDMENTS. The Credit Agreement is hereby
amended as follows:
a. Section 3.01(a) of the Credit Agreement is hereby
amended by deleting the grid contained therein and replacing it
with the following:
"RATING FACILITY FEE
A-/A3 .1%
BBB+/Baa1 .15%
BBB/Baa2 .175%
BBB-/Baa3 .225%
BB+/Ba1 .3%"
b. A new Section 7.10 is hereby added to the Credit
Agreement to read as follows:
"Section 7.10 YEAR 2000. Borrower will ensure that
its Information Systems and Equipment and that of its
Subsidiaries are, at all times after the Amendment
Closing Date, Year 2000 Compliant, except insofar as the
failure to be would not reasonably be expected to result
in a Material Adverse Effect, and shall notify the
Administrative Agent and all Banks promptly upon
detecting any failure of said Information Systems and
Equipment to be Year 2000 Compliant, if same would
reasonably be expected to result in a Material Adverse
Effect. In addition, Borrower shall provide the
Administrative Agent and any Bank with such information
about its year 2000 computer readiness as the
Administrative Agent or such Bank shall reasonably
request."
c. The following defined terms are hereby added to or
amended in Section 10 of the Credit Agreement in their appropriate
alphabetical order to read as follows:
(i) "'AMENDMENT CLOSING DATE' shall mean the date that
the Third Amendment to Credit Agreement and Loan Documents
dated as of October 15, 1999, among Borrower, the
Administrative Agent and the Banks shall have become effective
pursuant to Section 4 thereof."
(ii) "'APPLICABLE EURODOLLAR MARGIN' shall mean the
following: prior to the Revolving Loan Maturity Date the
Applicable Eurodollar Margin shall be equal to the percentage
per annum set forth below opposite Borrower's applicable
Rating, effective as of the date such Rating is published or
announced:
APPLICABLE
EURODOLLAR
RATING MARGIN
A- / A3 .40%
BBB+ / Baa1 .475%
BBB / Xxx0 .000%
XXX- / Xxx0 .775%
BB+ / Ba1 1.075%;
PROVIDED, prior to the Revolving Loan Maturity Date the above
listed figures shall each be increased at any time, and for so
long as, the Revolving Credit Loans, in the aggregate, equal:
(i) twenty-five percent (25%) or more of the Total Commitment
but less than fifty percent (50%), by adding 12.5 basis points
(.125%) thereto, and (ii) fifty percent (50%) or more of the
Total Commitment, by adding 25 basis points (.25%) thereto.
Subsequent to the Revolving Loan Maturity Date and until
payment in full of the Obligations, the Applicable Eurodollar
Margin shall be equal to the percentage per annum set forth
below opposite Borrower's applicable Rating, effective as of
the date such Rating is published or announced:
APPLICABLE
EURODOLLAR
RATING MARGIN
A- / A3 .65%
BBB+ / Baa1 .725%
BBB / Xxx0 .000%
XXX- / Xxx0 1.025%
BB+ / Ba1 1.325%"
(iii) "'INFORMATION SYSTEMS AND EQUIPMENT' means all
material computer hardware and software, as well as other
material information processing systems, or any material
equipment containing embedded microchips, whether directly
owned, licensed, leased, operated or otherwise controlled by
the Borrower or any of its Subsidiaries, including through
third-party service providers, and which are essential to the
Borrower's or any of its Subsidiaries' conduct of their
business."
(iv) "'YEAR 2000 COMPLIANT' means that, to Borrower's
knowledge, all Information Systems and Equipment accurately
process in all material respects date data (including, but not
limited to, calculating, comparing and sequencing), before,
during and after the year 2000, as well as same and multi-
century dates, or between the years 1999 and 2000, taking into
account all leap years, including the fact that the year 2000
is a leap year, and further, that when used in combination
with, or interfacing with, other Information Systems and
Equipment, shall in all material respects accurately accept,
release and exchange date data, and shall, normal wear and
tear and force majeure excepted, in all material respects,
continue to function in good working order, and not otherwise
impair the accuracy or functionality of the Information
Systems and Equipment."
Section 3. RATIFICATION. The Borrower hereby ratifies and
confirms all of the Obligations under the Credit Agreement (as
amended hereby) and the Notes. All references to the "Credit
Agreement" shall mean the Credit Agreement as amended hereby and as
the same may be amended, supplemented, restated or otherwise
modified and in effect from time to time in the future.
Section 4. EFFECTIVENESS. The effectiveness of this
Amendment is subject to the condition precedent that (i) the
Administrative Agent shall have received in form and substance
reasonably satisfactory to the Banks and in such number of
counterparts as may be reasonably requested by the Administrative
Agent, this Amendment executed by the Borrower and each of the
Banks and (ii) the Borrower shall have paid (Y) to the
Administrative Agent, for the pro-rata benefit of the Banks, an
Amendment fee equal to .1% of the Total Commitment, and (Z) all of
the Administrative Agent's reasonable costs and expenses (other
than legal fees and expenses, which shall be payable promptly after
Borrower receives an invoice from counsel to the Administrative
Agent) incurred in connection herewith.
Section 5. REPRESENTATIONS AND WARRANTIES. The Borrower
hereby represents and warrants to the Banks that (a) the execution,
delivery and performance of this Amendment has been duly
authorized by all requisite corporate action on the part of the
Borrower, (b) the Credit Agreement (as amended hereby) constitutes
a valid and legally binding agreement enforceable against the
Borrower in accordance with its terms except, as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity, (c) the
representations and warranties by the Borrower contained in the
Credit Agreement as amended hereby are true and correct on and as
of the date hereof in all material respects as though made as of
the date hereof unless such representation and warranty expressly
indicates that it is being made as of any specific date, in which
case such representations and warranties shall be true and correct
in all material respects as of such date, and except to the extent
that such representations and warranties are no longer true and
correct due to any action or inaction permitted or required to be
taken under the Credit Documents by Borrower or any Subsidiary, and
(d) no Default or Event of Default exists under the Credit
Agreement (as amended hereby).
Section 6. CHOICE OF LAW. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
Section 7. FINAL AGREEMENT. THE CREDIT AGREEMENT (AS
AMENDED HEREBY) REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by its officers thereunto duly authorized
as of the date first above written.
ADDRESS: GLOBAL MARINE INC.
000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000 By: /S/ W. Xxxx Xxxxx
Attention: W. Xxxx Xxxxx W. Xxxx Xxxxx
Senior Vice President
- Chief Financial Officer and
Treasurer
BANKERS TRUST COMPANY,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Principal
ABN AMRO BANK, N.V., HOUSTON
AGENCY, Individually and as
Syndication Agent
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
ARGENTARIA, CAJA POSTAL Y BANCO
HIPOTECARIO, NEW YORK BRANCH
By: /s/Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: General Manager
BANCO ESPIRITO SANTO E COMMERCIAL
DE LISBOA, NASSAU BRANCH
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ A. S. Xxxxxxxxxx
Name: X. X. Xxxxxxxxxx
Title: Sr. Team Leader-
Loan Operations
THE BANK OF TOKYO - MITSUBISHI,
LTD.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Manager
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Philippe Soustna
Name: Philippe Soustna
Title: Senior Vice President
DEN NORSKE BANK ASA, NEW YORK
BRANCH
By: /s/ Ole B. Hjertaker
Name: Ole B. Hjertaker
Title: First Vice President
By: /s/ Chr. Xxxxxx Xxxxxx
Name: Chr. Xxxxxx Xxxxxx
Title: Assistant Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY,
Individually and as Documentation
Agent
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Director
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/Xxxxxxx XxXxxxxx
Name: Xxxxxxx XxXxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Associate
