EXHIBIT 10.8
June 4, 1999
Global Marine Inc.
000 X. Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Ladies and Gentlemen:
We are pleased to make available to you an uncommitted credit facility
for general corporate purposes on the terms set forth in this letter
("LOAN AGREEMENT").
1. We agree to consider from time to time your requests that we
make advances to you, on either an interest bearing or a discount basis
("ADVANCES"), in an aggregate amount not to exceed at any one time
outstanding the amount set forth on SCHEDULE I hereto as the "Facility
Amount", on the terms and conditions set forth below. This letter is
not a commitment to lend but rather sets forth the procedures to be
used in connection with your requests for our making of Advances to
you from time to time on or prior to the termination hereof pursuant to
PARAGRAPH 10 and, in the event that we make Advances to you hereunder,
your obligations to us with respect thereto. The Advances shall be
evidenced by the "grid" promissory note executed by you in
substantially the form of EXHIBIT A hereto (as amended from time to
time, the "NOTE").
2. The net amount of each Advance shall be in an amount at least
equal to the amount set forth on SCHEDULE I hereto as the "MINIMUM
ADVANCE AMOUNT" and shall be made upon (i) your request to us by
telephone, telecopy or letter, given by any of the persons listed on
EXHIBIT B hereto or otherwise designated by you in writing ("DESIGNATED
PERSONS"), that you wish to borrow money on a specified date, in a
specified amount and for a specified term (which shall, in no event, be
longer than the number of days set forth on SCHEDULE I hereto as the
"MAXIMUM TERM" (and in any event, no such Advance shall mature after
January 31, 2000); and (ii) our mutual agreement as to such date,
amount and term and as to the interest rate per annum or, in the case
of an Advance made on a discount basis, discount applicable to any such
Advance. On the date of any such Advance, we will make such Advance
available to you in same day funds by directing our managing agent to
transfer or wire the net proceeds of such Advance to an account
designated in writing by a Designated Person. Promptly after the date
of each Advance, our managing agent will send you a written
confirmation of such Advance and the amount and term thereof and the
interest rate per annum or, in the case of an Advance made on a
discount basis, discount applicable thereto.
3. Your agreement and acceptance of this letter, together with
your furnishing to us certified copies of (i) your charter and by-laws
and (ii) resolutions of your board of directors authorizing a
Designated Person to execute this letter and any documents delivered
pursuant hereto and to request Advances, together with specimen
signatures of such Designated Persons, shall constitute a
representation and warranty by you that (a) the execution, delivery and
performance of this letter has been duly authorized by all necessary
corporate action and does not contravene any law, or any contractual or
legal restriction, applicable to you, (b) no authorization or approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for such execution, delivery
and performance or for the making of any Advance and (c) this letter is
your legal, valid and binding obligation, enforceable against you in
accordance with its terms.
4. Each request by you for an Advance shall constitute a
representation and warranty by you, as of the making of such Advance
and giving effect to the application of the proceeds therefrom, that
(i) no payment default has occurred and is continuing under any
agreement or instrument relating to any of your indebtedness for
borrowed money the outstanding principal of which aggregates
$25,000,000 or more, (ii) such Advance when made will constitute your
legal, valid and binding obligation, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights and by the application of
general principles of equity, and (iii) no event has occurred and no
circumstance exists as a result of which the written information which
you have provided to us in connection herewith would include an untrue
statement of a material fact or omit to state any material fact or any
fact necessary to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading.
5. You shall repay each Advance, and in the case of an Advance
made on an interest bearing basis shall pay interest on such Advance,
in accordance with the terms hereof and of the Note. You shall have no
right to prepay any unpaid principal amount of any Advance unless you
pay us the Make-Whole Amount (as defined in paragraph 15 of this
letter).
6. You shall make each payment hereunder and under the Notes on
or before 12:00 noon (New York City time) on the day when due in lawful
money of the United States of America to us at Societe Generale, New
York, ABA # 000-000-000, A/C 9038973, R/E Altair, in same day funds.
All computations of interest shall be made by us on the basis of a year
of 360 days, for the actual number of days (including the first day but
excluding the last day) elapsed.
7. Whenever any payment to be made hereunder shall be otherwise
due on a Saturday, a Sunday or other day of the year on which banks are
required or authorized to close in New York City, New York (any other
day being a "BUSINESS DAY"), such payment shall be made on the next
succeeding Business Day.
8. You agree that you will not apply the proceeds of any Advance
to purchase or carry margin stock within the meaning of Regulations U
and T issued by the Board of Governors of the Federal Reserve System.
9. We shall incur no liability to you in acting upon any
telephone, telecopy, telex or letter request or communication which we
believe in good faith to have been given by a Designated Person or in
otherwise acting in good faith under this letter. Further, all
documents required to be executed in conjunction with Advances under
this letter may be signed by any Designated Person.
10. This letter shall remain in effect until terminated by either
you or us by giving prior written notice of termination hereof to the
other party hereto, but no such termination shall affect your or our
obligations with respect to the Advances hereunder outstanding at the
time of such termination.
11. All written communications hereunder shall be mailed,
telecopied or delivered to the address specified on SCHEDULE I hereto
for you and for us, or as to each party, to such other address as may
be designated by such party in a written notice to the other party.
Written communication shall be effective upon receipt unless such
communication is mailed, in which case it shall be effective three
Business Days after deposit in first class mail.
12. We may assign to one or more banks or other entities all or
any part of, or may grant participations to one or more banks or other
entities in or to all or any part of, any Advance or Advances hereunder
and under the Note. You may not assign your rights or obligations
hereunder or any interest herein without our prior written consent and
the written confirmation from each of the Rating Agencies that as a
result of such assignment the then current rating of the commercial
paper issued by us will not be downgraded or withdrawn and any such
assignment without our consent shall be null and void.
13. You agree to pay on demand all reasonable out-of-pocket
costs, expenses and losses, if any, incurred by us in connection with
the enforcement of this letter or the Note other than such costs,
expenses or losses arising out of your gross negligence or wilful
misconduct.
14. You agree to furnish us with such financial statements or
other information as we may reasonably request. We agree to keep all
such information confidential and use it solely in connection with the
administration of this Loan Agreement.
15. If any of the following events shall occur and be continuing:
(a) you shall fail to pay any amount due hereunder or under
the Note when the same becomes due and payable; or
(b) any material representation or warranty made by you (or
any of your officers) in connection with any Advance or otherwise
in connection with this letter or the Note shall prove to have
been incorrect in any material respect when made; or
(c) you shall, without our prior written consent, merge or
consolidate with or into, or convey, transfer, lease or dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of your assets to, any person or entity other
than in any transaction permitted under the Five-Year Credit
Agreement (as defined below); or
(d) you shall fail to perform or observe any other material
term, covenant or agreement in connection with any Advance or
otherwise in connection with this letter or the Note on your part
to be performed or observed and such failure is not remedied
within 30 days after your receipt of written notice from us; or
(e) any Event of Default occurs and continues as defined in
the Second Amended and Restated Credit Agreement dated as of
December 9, 1997 (as amended from time to time "FIVE-YEAR CREDIT
AGREEMENT") among you, the lending institutions party thereto and
Bankers Trust Company as Administrative Agent; or
(f) you shall fail to pay any principal of or premium or
interest on any indebtedness for borrowed money the outstanding
principal of which aggregates $25,000,000 or more (excluding
indebtedness evidenced by the Note), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such indebtedness; or any
other event shall occur or condition shall exist under any
agreement or instrument relating to such indebtedness and shall
continue after the receipt of any applicable notice or expiry of
any applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
indebtedness; or any such indebtedness 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; or
(g) you shall generally not pay your debts as such debts
become due, or shall admit in writing your inability to pay your
debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against you seeking to adjudicate you as bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of you or your
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for you or any substantial
part of your property; or you shall take any corporate action to
authorize any of the actions set forth above in this SUBSECTION
(g);
then, and in any such event, we may declare the Note, and all amounts
payable thereunder to be forthwith due and payable, whereupon the Note
and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind all
of which you hereby expressly waive; PROVIDED, HOWEVER, that in the
event of any occurrence described in SUBSECTION (g), the Note and all
such other amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by you. In the event that the Note
becomes due and payable pursuant to this PARAGRAPH 15, you shall also
pay us, in addition to all amounts payable under the Note, to the
extent permitted by law, an amount equal to the positive difference, if
any, for each Advance between (i) the interest that would have accrued
with respect to such Advance under the Note from the date such Advance
was paid to the scheduled maturity date therefor and (ii) the interest
actually earned by us on the amount repaid to us with respect to such
Advance from the date of payment thereof to the scheduled maturity date
for such Advance (the "MAKE-WHOLE AMOUNT").
16. You agree that no amendment or waiver of any provision of
this letter or the Note nor consent to any departure by you therefrom,
shall in any event be effective unless the same shall be in writing and
signed by the you and the undersigned ("LENDER"), and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
17. You agree to indemnify the Lender, its officers, directors,
employees, representatives and agents from and discharge, release, and
hold each of them harmless against any and all reasonable losses,
liabilities, obligations, claims, damages, expenses, fines or penalties
incurred by any of them as a result of, or directly arising out of, or
directly related to (a) any actual or proposed use by you or a
subsidiary of the proceeds of the Advances, (b) any breach by you of
any provision of this letter or the Note, (c) any investigation,
litigation or other proceeding (whether or not the Lender is a party
thereto) related to the foregoing, including, but not limited to, the
entering into and/or performance of this letter or the Note, or the use
of proceeds of any Advances hereunder, or (d) any Environmental Claim
(as defined in the Five-Year Credit Agreement) or requirement of
Environmental Laws (as defined in the Five-Year Credit Agreement)
concerning or relating to (i) any Real Property (as defined in the
Five-Year Credit Agreement), offshore drilling rig, facility, or
location which you at any time owned or operated, or (ii) your
operations or business, and you agree to reimburse the Lender and its
directors, officers, employees and agents within 30 days' of demand for
any reasonable out-of-pocket expenses (including outside legal fees)
incurred in connection with any such investigation, litigation or other
proceeding; and expressly including any such losses, liabilities,
claims, damages, or expenses incurred by reason of negligence by such
person seeking indemnification, but excluding any such losses,
liabilities, claims, damages, or expenses incurred by reason of the
gross negligence or willful misconduct of the person seeking
indemnification. To the extent that the undertaking to indemnify, pay
or hold harmless the person seeking indemnification as set forth in the
preceding sentence may be unenforceable because it is violative of any
law or public policy, you agree to make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which
is permissible under applicable law.
18. THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
19. You and we each hereby irrevocably waive all right to trial
by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) arising out of or relating to this letter
or the Note.
20. You agree that you will not institute against or join any
other person in instituting against us any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding
under any federal or state bankruptcy or similar law, for one year and
a day after the latest maturing commercial paper issued by us is paid
in full.
21. At our option, we shall, upon notice that either Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.,
or Xxxxx'x Investor Service, Inc. has (i) lowered or downgraded its
short term commercial paper or corporate bond or other short term
rating of you, (ii) placed your securities on a watch list of
securities singled out for surveillance, with either negative or
developing implications or (iii) withdrawn its approval of you for
inclusion in a Ratings Category (as defined in the Loan Referral
Agreement, dated as of January 31, 1997, between us and Societe
Generale), amend SCHEDULE I hereof to provide for an amended "Facility
Amount" and amended "Maximum Term".
22. As long as you shall have any Advances outstanding, you agree
that you will maintain an unutilized aggregate amount equal to the
amount of all outstanding Advances under (a) the Five-Year Credit
Agreement, (b) any successor or replacement facilities with financial
institutions; PROVIDED that, the commitments relied upon for
determining such availability must remain effective through a date that
is later than January 31, 2000.
23. Our obligations under this Agreement are solely our corporate
obligations. No recourse shall be had for the payment of any amount
owing by us hereunder or any other obligation or claim of or against us
arising out of or based upon this Agreement against any of our
stockholders, employees, officers, directors or incorporators.
If the terms of this letter are satisfactory to you, please
indicate your agreement and acceptance thereof by signing a counterpart
of this letter and returning it to us.
Very truly yours,
ALTAIR FUNDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Vice President
Agreed and Accepted:
GLOBAL MARINE INC.
By: /s/ X. Xxxx Xxxxx
Name: X. Xxxx Xxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
SCHEDULE I
to Loan Agreement
dated as of June 4, 1999
between ALTAIR FUNDING CORPORATION and
GLOBAL MARINE INC.
(i) For the purpose of Sections 1 and 2 of this Loan Agreement:
The "Facility Amount" is $50,000,000.
The "Minimum Advance Amount" is $3,000,000.
The "Maximum Term" is 70 days.
(ii) For the purpose of Section 11 of this Loan Agreement:
The address for written communications to you is:
Global Marine Inc.
000 X. Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-4493
Attention: X. Xxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
The address for written communications to us is:
Altair Funding Corp. c/o Societe Generale
000 Xxxx Xxxxxxx Xxxxx 0000
Xxxxxxx Xxxxxxxx, 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
(iii) For purposes of this Loan Agreement, instructions for wire
transfer of funds to the Borrower are:
Name of Bank: First Union National Bank - Charlotte, NC
Bank ABA Number: 053 000 219
Borrower Number: 2000-000-372-037
Reference: Global Marine Inc.
EXHIBIT A
to
The Loan Agreement
FORM OF SHORT-TERM PROMISSORY GRID NOTE
$ Dated , 199
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), XXXXXX
PROMISES TO PAY to the order of Altair Funding Corporation (the
"LENDER") with respect to each Advance (as defined below):
(a) in the case of an Advance made on an interest bearing
basis, the principal amount of such Advance made by the Lender to
the Borrower, on the date mutually agreed to by the Lender and the
Borrower at the time of such Advance as the maturity date thereof,
together with interest (computed on the basis of a year of 360
days for the actual number of days, including the first day but
excluding the last day, elapsed) on the principal amount of each
Advance outstanding from time to time from and including the date
on which such Advance is made until the maturity date of such
Advance, at an interest rate per annum, mutually agreed to by the
Lender and the Borrower at the time of such Advance, payable on
the maturity date of such Advance; and
(b) in the case of each Advance made by the Lender to the
Borrower, on a discount basis mutually agreed by the Lender and
the Borrower at the time of such Advance, the stated or face
amount of such Advance, on the date mutually agreed to by the
Lender and the Borrower at the time of such Advance as the
maturity date thereof.
Any overdue principal amount and overdue amount of interest, fees or
other amounts payable hereunder or under the Loan Agreement referred to
below shall bear interest, payable on demand, at a fluctuating interest
rate per annum equal at all times to 2 percent (2%) per annum above the
Federal Funds Rate as in effect from time to time, which interest rate
shall change when and as the Federal Funds Rate changes. "Federal
Funds Rate" means the rate for overnight Federal Funds, as published by
the Federal Reserve Bank of New York.
The Borrower shall have no right to prepay any unpaid principal
amount of any Advance unless the Borrower pays to the Lender the Make-
Whole Amount (as defined in the Loan Agreement referred to below).
The Borrower shall make each payment of principal and interest
hereunder prior to 12:00 noon (New York City time) on the day when due
in lawful money of the United States of America to Societe Generale,
New York, ABA # 000-000-000, A/C 9038973, R/E Xxxxxx, in same day
funds. Whenever any payment to be made hereunder shall be otherwise due
on a day other than a Business Day (as defined in the Loan Agreement
referred to below), such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included
in the computation of payment of interest.
The Borrower hereby authorizes the Lender to endorse on the grid
attached hereto the date and amount of each Advance made by the Lender
to the Borrower hereunder, the maturity date thereof, all payments made
on account of principal thereof and the interest rate applicable
thereto, PROVIDED that the failure to do so shall not affect the
obligations of the Borrower to the Lender.
The Borrower also agrees to pay on demand all reasonable costs and
expenses (including reasonable fees and expenses of counsel) incurred
by the Lender in enforcing this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Borrower and the Lender hereby irrevocably waive all right to
trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) arising out of or relating to this
Promissory Note or any Advances hereunder.
This Promissory Note is the "grid" promissory note referred to in,
and is entitled to the benefits of, the Loan Agreement dated June 4,
1999 (as amended from time to time, the "LOAN AGREEMENT"), between the
Borrower and the Lender, which Loan Agreement, among other things, sets
forth procedures to be used in connection with the Borrower's periodic
requests that the Lender make advances (the "ADVANCES") to it from time
to time in an aggregate amount not to exceed at any time outstanding
the amount first above mentioned.
GLOBAL MARINE INC.
By:
Name:
Title:
EXHIBIT B
to
the Loan Agreement
For the purpose of Section 2 of this Loan Agreement, the
"DESIGNATED PERSONS" are:
NAME TITLE
X. Xxxx Xxxxx Senior Vice President, Chief Financial Officer
and Treasurer
Xxxxxxx X. Xxxxxxxxxxxx Assistant Treasurer
Xxxxxx X. Xxxxxxx Vice President and Corporate Controller
Xxxxx XxXxxxxxxx Senior Vice President and General Counsel
SHORT-TERM PROMISSORY GRID NOTE
$50,000,000.00 Dated June 4, 1999
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), XXXXXX
PROMISES TO PAY to the order of Altair Funding Corporation (the
"LENDER") with respect to each Advance (as defined below):
(a) in the case of an Advance made on an interest bearing
basis, the principal amount of such Advance made by the Lender to
the Borrower, on the date mutually agreed to by the Lender and the
Borrower at the time of such Advance as the maturity date thereof,
together with interest (computed on the basis of a year of 360
days for the actual number of days, including the first day but
excluding the last day, elapsed) on the principal amount of each
Advance outstanding from time to time from and including the date
on which such Advance is made until the maturity date of such
Advance, at an interest rate per annum, mutually agreed to by the
Lender and the Borrower at the time of such Advance, payable on
the maturity date of such Advance; and
(b) in the case of each Advance made by the Lender to the
Borrower, on a discount basis mutually agreed by the Lender and
the Borrower at the time of such Advance, the stated or face
amount of such Advance, on the date mutually agreed to by the
Lender and the Borrower at the time of such Advance as the
maturity date thereof.
Any overdue principal amount and overdue amount of interest, fees or
other amounts payable hereunder or under the Loan Agreement referred to
below shall bear interest, payable on demand, at a fluctuating interest
rate per annum equal at all times to 2 percent (2%) per annum above the
Federal Funds Rate as in effect from time to time, which interest rate
shall change when and as the Federal Funds Rate changes. "Federal
Funds Rate" means the rate for overnight Federal Funds, as published by
the Federal Reserve Bank of New York.
The Borrower shall have no right to prepay any unpaid principal
amount of any Advance unless the Borrower pays to the Lender the Make-
Whole Amount (as defined in the Loan Agreement referred to below).
The Borrower shall make each payment of principal and interest
hereunder prior to 12:00 noon (New York City time) on the day when due
in lawful money of the United States of America to Societe Generale,
New York, ABA # 000-000-000, A/C 9038973, R/E Xxxxxx, in same day
funds. Whenever any payment to be made hereunder shall be otherwise due
on a day other than a Business Day (as defined in the Loan Agreement
referred to below), such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included
in the computation of payment of interest.
The Borrower hereby authorizes the Lender to endorse on the grid
attached hereto the date and amount of each Advance made by the Lender
to the Borrower hereunder, the maturity date thereof, all payments made
on account of principal thereof and the interest rate applicable
thereto, PROVIDED that the failure to do so shall not affect the
obligations of the Borrower to the Lender.
The Borrower also agrees to pay on demand all reasonable costs and
expenses (including reasonable fees and expenses of counsel) incurred
by the Lender in enforcing this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Borrower and the Lender hereby irrevocably waive all right to
trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) arising out of or relating to this
Promissory Note or any Advances hereunder.
This Promissory Note is the "grid" promissory note referred to in,
and is entitled to the benefits of, the Loan Agreement dated June 4,
1999 (as amended from time to time, the "LOAN AGREEMENT"), between the
Borrower and the Lender, which Loan Agreement, among other things, sets
forth procedures to be used in connection with the Borrower's periodic
requests that the Lender make advances (the "ADVANCES") to it from time
to time in an aggregate amount not to exceed at any time outstanding
the amount first above mentioned.
GLOBAL MARINE INC.
By:
Name:
Title:
GRID
Interest Rate
on
or Rate of Discounted
Amount Maturity Discount of Amount of
Date of of of Advance (as Advance (if Notion Made
Advance Advance Advance applicable) applicable) By
