EXHIBIT 99.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0 (the "AMENDMENT"), dated as of
September 3, 1997, to that certain Amended and Restated Credit
Agreement, entered into as of February 12, 1997 and amended and
restated as of July 15, 1997 (the "CREDIT AGREEMENT"; capitalized
terms used herein and not defined shall have the meaning set
forth in the Credit Agreement), among GLOBAL MARINE INC., a
Delaware corporation ("BORROWER"), the lending institutions party
thereto (the "BANKS"), BANKERS TRUST COMPANY, as administrative
agent (the "ADMINISTRATIVE AGENT"), SOCIETE GENERALE, as managing
agent (the "MANAGING AGENT"), and CHRISTIANIA BANK OG KREDITKASSE
ASA, NEW YORK BRANCH, CREDIT LYONNAIS NEW YORK BRANCH and THE
BANK OF NOVA SCOTIA, as co-agents (collectively, the "CO-AGENTS",
and together with the Administrative Agent and the Managing
Agent, the "AGENTS").
W I T N E S S E T H :
WHEREAS, Borrower and the Banks wish to provide for the
amendment of the Credit Agreement as herein provided; and
WHEREAS, pursuant to Section 12.12 of the Credit
Agreement, Borrower and each of the undersigned Banks hereby
agree to amend the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION ONE - AMENDMENTS. (i) Section 8.03 of the
Credit Agreement is amended, effective as of the date hereof, and
subject to the satisfaction of the conditions set forth in
Section Three hereof, by (a) deleting the "." at the end of
clause (f) thereof and substituting "; and" in lieu thereof and
(b) inserting the following clause immediately after clause (f)
thereof:
"(g) Indebtedness represented by senior unsecured debt
securities issued by the Borrower in an aggregate
principal amount not exceeding $300.0 million; PROVIDED
that (i) the terms and conditions of such Indebtedness
either (x) provide for (A) an average life for such
Indebtedness of at least five years, (B) an interest
rate applicable to such Indebtedness not in excess of
8% per annum, and (C) no scheduled maturity or any
mandatory sinking fund, prepayment or retirement
requirements of such Indebtedness prior to the Maturity
Date or (y) are reasonably satisfactory in all material
respects to the Administrative Agent; and (ii) no
Default or Event of Default shall occur or be
continuing at the time of the incurrence thereof or
immediately after giving effect to the incurrence
thereof."
ii) The definition of Debt Issuance in the Credit
Agreement is amended to add prior to the period thereof
the words "and other than any Indebtedness incurred
pursuant to Section 8.03(g)"
SECTION TWO - RELEASE OF GUARANTIES. Effective as of
the date hereof, and subject to the satisfaction of the
conditions set forth in Section Three hereof, and to the issuance
and sale of not less than $300 million in aggregate principal
amount of notes as permitted by new Section 8.03(g) of the Credit
Agreement contemplated by Section One of this Amendment, (a) all
Guarantees are hereby released, disclaimed, terminated,
discharged and otherwise no longer of any force or effect, (b)
all Guarantors are released from all obligations under the
Guarantees, the Ratification Agreement and the other Credit
Documents, (c) Section 7.11 of the Credit Agreement is hereby
deleted in its entirety, (d) the proviso to Section 8.02(a) of
the Credit Agreement is deleted, (e) the parenthetical in Section
8.03(b) of the Credit Agreement is deleted, (f) the reference to
"Guarantor" in Section 8.08 of the Credit Agreement is hereby
deleted and replaced with "Subsidiary (other than an Unrestricted
Subsidiary)", (g) Section 9.06 of the Credit Agreement is deleted
in its entirety, (h) the text of clause (iv) of the definition of
Consolidated Net Income in the Credit Agreement is deleted and
replaced with the following "the net income of any Subsidiary to
the extent that the transfer to Borrower or a Subsidiary of that
income is not at the time permitted, directly or indirectly, by
any means (including by dividend, distribution, advance or loan
or otherwise), by operation of the terms of its charter or any
agreement with a Person other than with Borrower or any Affiliate
thereof, instrument held by a Person other than by Borrower or
any Affiliate thereof, judgment, decree, order, statute, law,
rule or governmental regulations applicable to such Subsidiary or
its stockholders; PROVIDED, HOWEVER, that if at any time during
the period for which Consolidated Net Income is measured such
restriction or transfer to Borrower of such income of a
Subsidiary is lifted, Consolidated Net Income shall include the
net income of such Subsidiary previously excluded", (i) the
definition of Credit Party in the Credit Agreement is amended by
deleting "and each Guarantor" , and (j) Borrower covenants and
agrees that if any Subsidiary (other than an Unrestricted
Subsidiary) guarantees any Indebtedness of Borrower described in
Section 8.03(b) or (g), then such Subsidiary shall guarantee the
Obligations on terms (and pursuant to documentation) no less
favorable to the Banks than such guarantee of such Indebtedness
and for so long as such Indebtedness is guaranteed; PROVIDED,
HOWEVER, that (x) if and to the extent that such guarantee of
such Indebtedness is released or discharged (other than by virtue
of payment), then the guarantee of the Obligations shall likewise
be released and (y) no Lien granted or existing in favor of the
Senior Secured Notes pursuant to the documentation relating
thereto as in effect on the Original Effectiveness Date shall be
deemed a guarantee and the existence or granting of any such Lien
pursuant to such documentation shall not in any manner require
the granting of any guarantee in respect of the Obligations.
SECTION THREE - CONDITIONS TO EFFECTIVENESS. This
Amendment shall become effective as of the date first above
written when, and only when, the Administrative Agent shall have
received counterparts of this Amendment executed by Borrower and
the Required Banks or, as to any of the Banks, advice
satisfactory to the Administrative Agent that such Bank has
executed this Amendment, except that, in addition to the
foregoing, Section Two of this Amendment shall not become
effective unless and until there has been an issuance and sale of
not less than $300 million in aggregate principal amount of notes
permitted by new Section 8.03(g) of the Credit Agreement
contemplated by Section One of this Amendment. In addition, the
effectiveness of this Amendment (other than Sections Six and
Eight hereof) is conditioned upon the accuracy of the
representations and warranties set forth in Section Four hereof.
SECTION FOUR - REPRESENTATIONS AND WARRANTIES. In
order to induce the Banks and the Agents to enter into this
Amendment, Borrower represents and warrants to each of the Banks
and the Agents that after giving effect to this Amendment, (a) no
Default or Event of Default has occurred and is continuing; (b)
all of the representations and warranties in the Credit Agreement
and each of the other Credit Documents, after giving effect to
this Amendment, are true and complete in all material respects on
and as of the date hereof as if made on the date hereof (or, if
any suchrepresentation or warranty is expressly stated to have
been made as of a specific date, as of such specific date); (c)
the execution, delivery and performance by Borrower of this
Amendment have been duly authorized; (d) this Amendment
constitutes the legal, valid and binding obligation of Borrower,
enforceable in accordance with its terms, except to the extent
that the enforceability hereof would be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at
law); and (e) neither the execution, delivery or performance by
Borrower of this Amendment nor compliance with the terms and
provisions hereof (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, (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 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.
SECTION FIVE - REFERENCE TO AND EFFECT ON THE CREDIT
AGREEMENT AND THE NOTES. On and after the effectiveness of this
Amendment, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the
Notes and each of the other Credit Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement, as amended by this Amendment. The
Credit Agreement, the Notes and each of the other Credit
Documents, as specifically amended by this Amendment, are and
shall continue to be in full force and effect and are hereby in
all respects ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of any Bank or any Agent under any of
the Credit Documents, nor constitute a waiver of any provision of
any of the Credit Documents.
SECTION SIX - COSTS, EXPENSES AND TAXES. Borrower
agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation,
execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, if any
(including, without limitation, the reasonable fees and expenses
of Xxxxxx Xxxxxx & Xxxxxxx) in accordance with the terms of
Section 12.01 of the Credit Agreement. In addition, Borrower
shall pay or reimburse any and all stamp and other taxes payable
or determined to be payable in connection with the execution and
delivery of this Amendment and the other instruments and
documents to be delivered hereunder, if any, and agrees to save
each Agent and each Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying
or omission to pay such taxes.
SECTION SEVEN - EXECUTION IN COUNTERPARTS. This
Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature
page to this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION EIGHT - GOVERNING LAW. This Amendment shall be
governed by, and construed in accordance with, the laws of the
State of New York (without giving effect to any provisions
thereof relating to conflicts of law).
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
GLOBAL MARINE INC.
By: /s/ W. Xxxx Xxxxx
Name: W. Xxxx Xxxxx
Title: Vice President & Treasurer
Commitment Amount BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
SOCIETE GENERALE,
Individually and as
Managing Agent
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE
ASA, NEW YORK BRANCH,
Individually and as Co-Agent
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: First Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Co-Agent
By:
Name:
Title:
THE BANK OF NOVA SCOTIA,
Individually and as Co-Agent
By: /s/ F. C. H. Xxxxx
Name: F. C. H. Xxxxx
Title: Senior Manager Loan Operations
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:
Name:
Title:
THE SANWA BANK LIMITED
By: /s/ Toru Sakamuto
Name: Toru Sakamuto
Title: Vice President
SKANDINAVISKA ENSKILDA XXXXXX XX
(publ.)
By: /s/ Magna Xxxx Per K. Froslich
Name: Magna Xxxx Per K. Froslich
Title: Head of Unit Head of Admin.
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxxxxxx Xxxx
Name: Harumsitsu Seki
Title: General Manager
DEN NORSKE BANK ASA, NEW YORK
BRANCH
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
THE FUJI BANK, LTD.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President and Manager
