1
Exhibit 4
CONFORMED AS EXECUTED
CREDIT AGREEMENT
among
NOBLE DRILLING CORPORATION,
VARIOUS LENDING INSTITUTIONS,
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
and
SUNTRUST BANK,
as Documentation Agents,
THE BANK OF TOKYO-MITSUBISHI, LTD.
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
as Syndication Agents
and
CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH,
as Lead Arranger
and Administrative Agent
Dated as of May 30, 2001
$200,000,000
2
TABLE OF CONTENTS
Page
----
SECTION 1. Amount and Terms of Credit...................................... 1
1.01 Commitment...................................................... 1
1.02 Minimum Borrowing Amounts, etc.................................. 1
1.03 Notice of Borrowing............................................. 1
1.04 Disbursement of Funds........................................... 2
1.05 Notes........................................................... 2
1.06 Conversions..................................................... 3
1.07 Pro Rata Borrowings............................................. 3
1.08 Interest........................................................ 4
1.09 Interest Periods................................................ 4
1.10 Increased Costs, Illegality, etc................................ 5
1.11 Compensation.................................................... 7
1.12 Change of Lending Office; Limitation on Indemnities............. 7
1.13 Replacement of Lenders.......................................... 8
1.14 Increase in Commitments; Additional Loans....................... 9
SECTION 2. Letters of Credit............................................... 9
2.01 Letters of Credit............................................... 9
2.02 Minimum Stated Amount........................................... 11
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..................................................... 15
SECTION 3. Fees; Commitments............................................... 15
3.01 Fees............................................................ 15
3.02 Voluntary Reduction of Commitments.............................. 16
3.03 Mandatory Adjustments of Commitments, etc....................... 16
SECTION 4. Payments........................................................ 16
4.01 Voluntary Prepayments........................................... 16
4.02 Mandatory Repayments............................................ 17
4.03 Method and Place of Payment..................................... 18
4.04 Net Payments.................................................... 19
SECTION 5. Conditions Precedent............................................ 20
5.01 Execution of Agreement; Notes................................... 21
(i)
3
Page
----
5.02 Officer's Certificate........................................... 21
5.03 Opinions of Counsel............................................. 21
5.04 Corporate Proceedings........................................... 21
5.05 Financial Statements; Adverse Change, etc....................... 21
5.06 Fees............................................................ 22
5.07 Insurance Certificates.......................................... 22
5.08 Refinancing..................................................... 22
SECTION 6. Conditions Precedent to All Credit Events....................... 22
6.01 No Default; Representations and Warranties...................... 22
6.02 Notice of Borrowing; Letter of Credit Request................... 22
SECTION 7. Representations, Warranties and Agreements...................... 23
7.01 Corporate Status................................................ 23
7.02 Corporate Power and Authority................................... 23
7.03 No Violation.................................................... 23
7.04 Litigation...................................................... 24
7.05 Use of Proceeds; Margin Regulations............................. 24
7.06 Governmental Approvals.......................................... 24
7.07 Investment Company Act.......................................... 24
7.08 Public Utility Holding Company Act.............................. 24
7.09 True and Complete Disclosure.................................... 24
7.10 Financial Condition; Financial Statements....................... 25
7.11 Tax Returns and Payments........................................ 25
7.12 Compliance with ERISA........................................... 26
7.13 Patents, etc.................................................... 26
7.14 Pollution and Other Regulations................................. 26
7.15 Properties...................................................... 27
7.16 Compliance with Statutes, etc................................... 27
7.17 Labor Relations................................................. 27
7.18 Existing Indebtedness........................................... 27
SECTION 8. Affirmative Covenants........................................... 28
8.01 Information Covenants........................................... 28
8.02 Books, Records and Inspections.................................. 29
8.03 Maintenance of Property; Insurance.............................. 29
8.04 Payment of Taxes................................................ 29
8.05 Consolidated Corporate Franchises............................... 30
8.06 Compliance with Statutes, etc................................... 30
8.07 Good Repair..................................................... 30
8.08 End of Fiscal Years; Fiscal Quarters............................ 30
8.09 Use of Proceeds................................................. 30
8.10 Maintenance of Corporate Existence and Good Standing............ 30
8.11 Guarantors...................................................... 31
(ii)
4
Page
----
8.12 ERISA........................................................... 31
SECTION 9. Negative Covenants.............................................. 31
9.01 Changes in Business............................................. 31
9.02 Consolidation, Merger, Sale of Assets, etc...................... 31
9.03 Indebtedness.................................................... 32
9.04 Liens........................................................... 32
9.05 Restricted Payments............................................. 34
9.06 Restrictions on Subsidiaries.................................... 34
9.07 Transactions with Affiliates.................................... 34
9.08 Interest Coverage Ratio......................................... 35
9.09 Leverage Ratio.................................................. 35
SECTION 10. Events of Default.............................................. 35
10.01 Payments....................................................... 35
10.02 Representations, etc........................................... 35
10.03 Covenants...................................................... 35
10.04 Default Under Other Agreements................................. 35
10.05 Bankruptcy, etc................................................ 36
10.06 Guaranty....................................................... 36
10.07 Judgments...................................................... 36
10.08 ERISA.......................................................... 36
10.09 Change of Control.............................................. 37
SECTION 11. Definitions.................................................... 38
SECTION 12. The Administrative Agent....................................... 51
12.01 Appointment.................................................... 51
12.02 Nature of Duties............................................... 52
12.03 Lack of Reliance on the Administrative Agent................... 52
12.04 Certain Rights of the Administrative Agent..................... 52
12.05 Reliance....................................................... 53
12.06 Indemnification................................................ 53
12.07 The Administrative Agent in Its Individual Capacity............ 53
12.08 Holders........................................................ 53
12.09 Resignation by the Administrative Agent........................ 54
SECTION 13. Miscellaneous.................................................. 54
13.01 Payment of Expenses, etc....................................... 54
13.02 Right of Setoff................................................ 55
13.03 Notices........................................................ 56
13.04 Benefit of Agreement........................................... 56
13.05 No Waiver; Remedies Cumulative................................. 58
13.06 Payments Pro Rata.............................................. 58
(iii)
5
Page
----
13.07 Calculations; Computations..................................... 58
13.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial..................................................... 59
13.09 Counterparts................................................... 59
13.10 Effectiveness.................................................. 60
13.11 Headings Descriptive........................................... 60
13.12 Amendment or Waiver............................................ 60
13.13 Survival....................................................... 60
13.14 Domicile of Loans.............................................. 61
13.15 Confidentiality................................................ 61
13.16 Registry....................................................... 61
ANNEX I -- Commitments
ANNEX II -- Lender Addresses
ANNEX III -- Pricing Grid
ANNEX IV -- Existing Letters of Credit
ANNEX V -- Existing Indebtedness
ANNEX VI -- Existing Liens
EXHIBIT A -- Form of Notice of Borrowing
EXHIBIT B -- Form of Note
EXHIBIT C -- Form of Letter of Credit Request
EXHIBIT D -- Form of Incremental Commitment Agreement
EXHIBIT E -- Form of Section 4.04(b)(ii) Certificate
EXHIBIT F -- Form of Opinion of Xxxxxxxx & Knight, P.C.
EXHIBIT G -- Form of Officers' Certificate
EXHIBIT H -- Form of Guaranty
EXHIBIT I -- Form of Compliance Certificate
EXHIBIT J -- Form of Assignment and Assumption Agreement
(iv)
6
CREDIT AGREEMENT, dated as May 30, 2001, among NOBLE DRILLING
CORPORATION (the "Borrower"), a Delaware corporation, the various lending
institutions listed from time to time on Annex I hereto (each a "Lender" and,
collectively, the "Lenders"), XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION and
SUNTRUST BANK, as Documentation Agents, THE BANK OF TOKYO-MITSUBISHI, LTD. and
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as Syndication Agents and
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH, as Lead Arranger and
Administrative Agent (the "Administrative Agent"). Unless otherwise defined
herein, all capitalized terms used herein and defined in Section 10 are used
herein as so defined.
W I T N E S S E T H:
WHEREAS, subject to the terms and conditions set forth herein, the
Lenders are willing to make available to the Borrower the credit facilities
provided for herein:
NOW, THEREFORE, it is agreed:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. Subject to and upon the terms and conditions
herein set forth, each Lender severally agrees to make a loan or loans (each a
"Loan" and, collectively, the "Loans") under the Facility to the Borrower, which
Loans (i) shall be made at any time and from time to time on and after the
Effective Date and prior to the Maturity Date, (ii) except as hereinafter
provided, may, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided that all
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) shall not exceed in
the aggregate for all Lenders at any time outstanding, when combined with the
Letter of Credit Outstandings at such time (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Loans), the Total Commitment and (v) shall not exceed
for any Lender at any time outstanding that aggregate principal amount which,
when combined with the aggregate outstanding principal amount of all other Loans
of such Lender and with such Lender's 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 the Commitment of such Lender at such time.
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 Borrowing. More than one Borrowing may be incurred
on any day, provided that at no time shall there be outstanding more than eight
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. Whenever the Borrower desires to incur
Loans under the Facility, it shall give the Administrative Agent at its Notice
Office, prior to 12:00 Noon (New York time), at least three Business Days' prior
written notice (or telephonic notice
7
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 notice (each a "Notice of Borrowing") shall be in the form of Exhibit
A and shall be irrevocable and shall specify (i) the aggregate principal amount
of the Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing
(which shall be a Business Day) and (iii) 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 Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing, of
such Lender's proportionate share thereof and of the other matters covered by
the Notice of Borrowing.
1.04 Disbursement of Funds. (a) No later than 12:00 Noon (New York
time) on the date specified in each Notice of Borrowing, each Lender 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 the 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 Lender prior to the date of
Borrowing that such Lender 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 Lender 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 the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender and the Administrative Agent has made
available same to the Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the
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 Lender or the 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 the 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 Lender,
the overnight Federal Funds Effective Rate or (y) if paid by the 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 Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any default by such
Lender hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made to it by each Lender shall be evidenced in the
Register maintained by the Administrative Agent pursuant to Section 13.16, and
shall, if requested by such Lender, also be
-2-
8
evidenced by a promissory note substantially in the form of Exhibit B with
blanks appropriately completed in conformity herewith (each a "Note" and,
collectively, the "Notes").
(b) The Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Effective
Date or, if issued after the Effective Date, be dated the date of issuance
thereof, (iii) be in a stated principal amount equal to the Commitment of such
Lender on such date and be payable in the outstanding principal amount of the
Loans evidenced thereby, (iv) mature on the Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the outstanding
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) Each Lender 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 or any error in such notation shall not affect the Borrower's
obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert on
any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of Loans into a Borrowing
or Borrowings of another Type of Loan, provided that (i) except as otherwise
provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable thereto and 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, (ii) no
Base Rate Loans may be converted into Eurodollar Loans at any time when a
Specified Default is in existence on the date of the conversion if the
Administrative Agent or the Required Lenders have determined that such a
conversion would be disadvantageous to the Lenders and (iii) Borrowings of
Eurodollar Loans resulting from this Section 1.06 shall be subject to the
limitations of Section 1.02. Each such conversion shall be effected by the
Borrower 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 Loans to be so converted, the Type of Loans to be converted into
and, if to be converted into a Borrowing of Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
prompt notice of any such proposed conversion to each Lender with Loans affected
thereby.
1.07 Pro Rata Borrowings. All Loans under this Agreement shall be
made by the Lenders pro rata on the basis of their Commitments. It is understood
that no Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fulfill its commitments hereunder.
-3-
9
1.08 Interest. (a) The unpaid principal amount of each Base Rate
Loan shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at all
times be the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Eurodollar Rate plus the Applicable Eurodollar Margin.
(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 2% per annum in
excess of the rate otherwise applicable to such Loans from time to time (or, if
such amounts do not relate to a specific Loan, 2% in excess of the Base Rate as
in effect from time to time), with such interest payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan, on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest Period,
(iii) in respect of each Eurodollar Loan, on any prepayment or conversion (on
the amount prepaid or converted) and (iv) in respect of each Loan, 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 13.07(b).
(f) The Administrative Agent, upon determining the interest rate
for any Borrowing of Eurodollar Loans for any Interest Period, shall promptly
notify the Borrower and the Lenders thereof.
1.09 Interest Periods. (a) At the time the 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 on the third Business Day prior to the expiration
of an Interest Period applicable to an outstanding Borrowing of Eurodollar Loans
(in the case of any subsequent Interest Period), the Borrower shall have the
right to elect, by giving the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) thereof, the interest period (each, an
"Interest Period") applicable to such Borrowing of Eurodollar Loans, which
Interest Period shall, at the option of the Borrower, be a one, two, three, six
or, with the consent of each Lender, twelve 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
-4-
10
such Borrowing shall commence on the day on which the immediately
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 at the end of such
Interest Period, 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 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 immediately 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 Specified
Default is then in existence if the Administrative Agent or the
Required Lenders have determined that such an election at such time
would be disadvantageous to the Lenders.
(b) If upon the expiration of any Interest Period, the 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, the 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 Lender shall have determined (which
determination shall, absent demonstrable 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 Lender shall incur actual increased
costs or reductions in the amounts received or receivable hereunder
with respect to any Eurodollar Loans because of (x) any change since
the date of this Agreement in any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force of law)
or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline
or order (such as, for example, but not limited to: (A) without
duplication of any amounts payable under Section 4.04(a), a change in
the basis of taxation or payment to any Lender of the principal of or
interest on such Eurodollar Loans or any other amounts payable
hereunder (except for changes with respect to any tax imposed on, or
determined by reference to, the net income or net profits
-5-
11
of such Lender pursuant to the laws of the United States, the
jurisdiction in which such Lender is organized or in which such
Lender's principal office or applicable lending office is located or
any subdivision thereof or therein), or (B) 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 since the date of this Agreement, that the
making or continuance of any Eurodollar Loan has become unlawful by
compliance by such Lender in good faith with any law, governmental
rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline, request or order not having
the force of law but with which such Lender customarily complies even
though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the
date of this Agreement which materially and adversely affects the
interbank Eurodollar market;
then, and in any such event, such Lender (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 the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower
with respect to Eurodollar Loans which have not yet been incurred shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall, subject to Section 1.12(b) (to the extent applicable), pay to
such Lender, 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 Lender in its sole discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Lender, showing the basis for the calculation thereof, submitted to the
Borrower by such Lender shall, absent demonstrable error, be final and
conclusive and binding upon all parties hereto) and (z) in the case of clause
(iii) above, the 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), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
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 the Borrower was notified by a Lender 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 Lender to convert each such Eurodollar Loan into a
-6-
12
Base Rate Loan, provided that if more than one Lender is affected at any time,
then all affected Lenders must be treated the same pursuant to this Section
1.10(b).
(c) If any Lender shall have 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 Lender with any request or
directive regarding capital adequacy (whether or not having the force of law but
with which such Lender 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 Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then
from time to time, within 15 days after demand by such Lender (with a copy to
the Administrative Agent), the Borrower shall, subject to Section 1.12(b) (to
the extent applicable), pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction. Each Lender, 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 the Borrower, which notice
shall set forth the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.
1.11 Compensation. The Borrower shall compensate each Lender, 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 Lender
to fund its Eurodollar Loans but excluding in any event the loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender 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 the Borrower or deemed
withdrawn pursuant to Section 1.10(a)); (ii) 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; (iii) if any prepayment of any of
its Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
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) or 1.14. A
Lender's basis for requesting compensation pursuant to this Section 1.11 and a
Lender's calculation of the amount thereof, shall, absent demonstrable error, be
final and conclusive and binding on all parties hereto.
1.12 Change of Lending Office; Limitation on Indemnities. (a) Each
Lender 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 Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
-7-
13
lending office for any Loan, Letters of Credit or Commitments affected by such
event, provided that such designation is made on such terms that such Lender 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 the Borrower or the right of any Lender provided in
Section 1.10, 2.06 or 4.04.
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10, 2.06 or 4.04 is given by any
Lender more than 90 days after such Lender obtained, or reasonably should have
obtained, knowledge of the occurrence of the event giving rise to the additional
costs of the type described in such Section, such Lender shall not be entitled
to compensation under Section 1.10, 2.06 or 4.04 for any amounts incurred or
accruing prior to the date which is 90 days prior to the giving of such notice
to the Borrower.
1.13 Replacement of Lenders. (x) 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 Lender which results in such
Lender charging to the Borrower increased costs in excess of those being charged
by the other Lenders or becoming incapable of making Eurodollar Loans, (y) if a
Lender becomes a Defaulting Lender and/or (z) as provided in Section 13.12(b),
in the case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Lenders, the Borrower shall have the right, if no Default or
Event of Default then exists, to replace such Lender (the "Replaced Lender")
with one or more other Eligible Transferee or Transferees reasonably acceptable
to the Administrative Agent, none of which Transferees shall constitute a
Defaulting Lender at the time of such replacement (collectively, the
"Replacement Lender"), provided that (i) at the time of any replacement pursuant
to this Section 1.13, the Replacement Lender shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all
fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in Letters
of Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender 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 Lender, (B) an amount equal to all Unpaid Drawings that
have been funded by (and not reimbursed to) such Replaced Lender, 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 Lender
pursuant to Section 3.01, and (y) the Letter of Credit Issuer an amount equal to
such Replaced Lender'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 Lender, and (ii) all obligations of the Borrower owing to the
Replaced Lender (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 Lender 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 Lender, delivery to the Replacement
Lender of a Note executed by the Borrower, the Replacement Lender shall become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to
-8-
14
indemnification provisions applicable to the Replaced Lender under this
Agreement, which shall survive as to such Replaced Lender.
1.14 Increase in Commitments; Additional Loans.
(a) The Borrower shall have the right at any time, so long as no
Default or Event of Default then exists or would result therefrom, to incur from
one or more existing Lenders and/or other Persons qualifying as Eligible
Transferees and which, in each case, agree to extend such commitments and make
such loans to the Borrower, additional loans and commitments to make loans in an
aggregate principal amount not to exceed $200,000,000, which commitments and
loans shall be incurred as additional Commitments and Loans (collectively, the
"Additional Loans").
(b) In the event that the Borrower desires to incur Additional
Loans, it will (x) enter into Incremental Commitment Agreements substantially in
the form of Exhibit D (appropriately completed) with the lenders providing such
Additional Loans (who shall by execution thereof become Lenders hereunder if not
already Lenders) and (y) provide for the issuance of promissory notes to
evidence the Additional Loans if requested by the Lenders advancing Additional
Loans (which notes shall constitute Notes for purposes of this Agreement). The
effectiveness of such Additional Loans shall occur upon (i) delivery of such
Incremental Commitment Agreement(s) to the Administrative Agent, (ii) the
payment to the Administrative Agent by the Borrower (or, to the extent agreed to
by the Borrower and the respective Lender, by such respective Lender) of a
non-refundable fee of $3,500 for each Eligible Transferee which becomes a Lender
pursuant to this Section 1.14 and (iii) delivery to the Administrative Agent of
an opinion, in form and substance reasonably satisfactory to the Administrative
Agent, from counsel to the Borrower, dated such date, covering such of the
matters set forth in the opinions of counsel delivered to the Administrative
Agent on the Initial Borrowing Date pursuant to Section 5.03 as may be
reasonably requested by the Administrative Agent, and such other matters as the
Administrative Agent may reasonably request. The Administrative Agent shall
promptly notify each Lender as to the effectiveness of Additional Loans, and at
such time Annex I shall be deemed modified to reflect the additional Commitments
incurred pursuant thereto. No consent of any Lender (other than any Lender
making Additional Loans) is required to permit the Loans contemplated by this
Section 1.14 or the aforesaid amendment to effectuate the Additional Loans.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request the Letter of Credit
Issuer to issue, at any time and from time to time on and after the Effective
Date and prior to the Maturity Date, and subject to and upon the terms and
conditions herein set forth, the Letter of Credit Issuer agrees to issue from
time to time, (x) for the account of the 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 the Borrower or any of its
Subsidiaries and, to the extent permitted by Section 2.01(b) and, subject to the
issuance policies of the respective Letter of Credit Issuer, Affiliates (it
being agreed that in no event shall the aggregate Letter of Credit Outstandings
attributable to Letters of Credit issued in
-9-
15
support of obligations of Affiliates of the Borrower exceed $12,500,000 at any
time), an irrevocable standby letter of credit, in a form customarily used by
the Letter of Credit Issuer or in such other form as has been approved by the
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 the Borrower and for the benefit of sellers of goods or materials to
the Borrower or any of its Subsidiaries, an irrevocable sight documentary letter
of credit in a form customarily used by the Letter of Credit Issuer or in such
other form as has been approved by the Letter of Credit Issuer (each such
documentary 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 the Borrower and its Subsidiaries. All
Letters of Credit issued hereunder shall, unless otherwise requested by the
Borrower, be denominated in Dollars. The Borrower may request that any Letter of
Credit issued hereunder be issued in a currency other than Dollars which is
acceptable to the respective Letter of Credit Issuer; provided that, for
purposes of calculating the Letter of Credit Outstandings at any time, the
Letter of Credit Outstandings attributable to all Letters of Credit issued in
currencies other than Dollars shall be determined on the basis of the Dollar
Equivalent of the face amount of each such Letter of Credit as determined on the
date of issuance thereof, in each case subject to adjustment on the last day of
each calendar month according to the then Dollar Equivalent of the face amount
of each such Letter of Credit on such date.
(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 $50,000,000; provided that in no event shall more than $12,500,000 in
aggregate Face Amount of Letters of Credit outstanding at any time be issued to
support obligations of Affiliates (who are not also Subsidiaries) of the
Borrower, and (ii) each Letter of Credit shall have an expiry date occurring not
later than one year after such Letter of Credit's date of issuance although any
Letter of Credit may be extendible for successive periods of up to 12 months,
but not beyond the Business Day immediately preceding the Maturity Date, on
terms acceptable to the Letter of Credit Issuer and in no event shall any Letter
of Credit have an expiry date occurring later than the Business Day immediately
preceding the Maturity Date.
(c) Notwithstanding the foregoing, no Letter of Credit Issuer
shall be under any obligation to issue any Letter of Credit if at the time of
such issuance (i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit (whether or not having the
force of law) or (ii) a Lender Default exists, unless the respective Letter of
Credit Issuer has entered into arrangements satisfactory to it and the Borrower
to eliminate the Letter of Credit Issuer's risk with respect to the
participation in Letters of Credit of any Defaulting Lender, including by cash
collateralizing any such Defaulting Lender's Percentage of the Letter of Credit
Outstandings.
(d) In addition to any Letters of Credit issued pursuant to the
preceding provisions of this Section 2.01, on the Initial Borrowing Date, the
letters of credit described in Annex III shall be assumed as Letters of Credit
hereunder and shall constitute Letter of Credit Outstandings in accordance with
the provisions hereof, and such Letters of Credit shall be subject to the
following provisions of this Section 2 (other than Section 2.03) and the other
provisions of
-10-
16
this Agreement to the same extent as if such Letters of Credit had originally
been issued hereunder.
2.02 Minimum Stated Amount. The initial Stated Amount of each
Letter of Credit shall be not less than $50,000 or such lesser amount reasonably
acceptable to the Letter of Credit Issuer.
2.03 Letter of Credit Requests; Request for Issuance of Letter of
Credit. (a) Whenever it desires that a Letter of Credit be issued, the Borrower
shall give the Letter of Credit Issuer written notice (including by way of
telecopier), or electronic notice actually received, in the form of Exhibit C
prior to 2:00 P.M. (New York time) at least three Business Days (or such shorter
period as may be acceptable to the Letter of Credit Issuer) prior to the
proposed date of issuance (which shall be a Business Day) (each a "Letter of
Credit Request"), with a copy to the Administrative Agent, which Letter of
Credit Request shall include any documents that the Letter of Credit Issuer
customarily requires in connection therewith. The Administrative Agent shall
promptly notify each Lender of each Letter of Credit Request.
(b) The Letter of Credit Issuer shall, on the date of each
issuance of a Letter of Credit by it, give each Lender and the Borrower written
notice of the issuance of such Letter of Credit.
(c) Each Letter of Credit Issuer (other than the Administrative
Agent in its capacity as a Letter of Credit Issuer) shall, promptly upon
issuance of any Letter of Credit issued pursuant to this Section 2, provide
notification of such issuance to the Administrative Agent, and shall promptly
thereafter deliver to the Administrative Agent a copy of such Letter of Credit
in the form so issued.
2.04 Agreement to Repay Letter of Credit Payments. (a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment to the Administrative Agent at the Payment Office, for any payment or
disbursement made by the Letter of Credit Issuer under any Letter of Credit,
which amount, in the case of any Letter of Credit denominated in a currency
other than Dollars, shall be the Dollar Equivalent of any such payment
calculated as of the date of such payment or disbursement by the respective
Letter of Credit Issuer (or, if greater, the date of such payment to the
Administrative Agent) (each such amount so paid or disbursed until reimbursed,
an "Unpaid Drawing") promptly on the date on which the Borrower is notified by
the Letter of Credit Issuer of such payment or disbursement, with interest on
the amount so paid or disbursed by the 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 the Letter of Credit Issuer is reimbursed therefor at a rate per annum
which shall be the Base Rate as in effect from time to time (plus an additional
2% per annum if not reimbursed by the third Business Day after the date of such
notice of payment or disbursement), such interest also to be payable on demand.
Upon any draft or other demand for payment under any Letter of Credit, the
respective Letter of Credit Issuer shall promptly provide notice thereof to the
Administrative Agent, whereupon the Borrower shall be automatically deemed to
have requested a Borrowing of Base Rate Loans to be made on the later of (i) the
first date upon which a Borrowing may be made in accordance with Section 1.03
(with the giving of
-11-
17
notice to the Administrative Agent by the respective Letter of Credit Issuer
being deemed for this purpose to be a Notice of Borrowing of Base Rate Loans)
and (ii) the date such draft or demand is to be paid by the respective Letter of
Credit Issuer, with such Borrowing to be in an amount equal to such draft or
demand (with such amount, in the case of Letters of Credit denominated in a
currency other than Dollars, to be determined in accordance with the foregoing
provisions of this Section 2.04(a)). If all conditions precedent to such
Borrowing are satisfied as of the date on which such Borrowing is to be made in
accordance with the preceding sentence, the Lenders shall make available to the
Administrative Agent their respective portions of such Borrowing in accordance
with Section 1.04 on such date, and the proceeds of such Loans shall promptly
thereafter be distributed by the Administrative Agent to the respective Letter
of Credit Issuer to be applied to the extent of the proceeds thereof to
reimburse such Unpaid Drawing.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the 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 the Borrower may have or have had against the Letter of Credit Issuer, the
Administrative Agent or any Lender, 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 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 the Letter of Credit) or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; provided,
however, that the Borrower shall not be obligated to reimburse the Letter of
Credit Issuer for any wrongful payment made by the 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 the Letter of Credit Issuer.
2.05 Letter of Credit Participations. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Lender,
and each such Lender (each a "Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation, to the
extent of such Lender's Percentage, in such Letter of Credit, each substitute
letter of credit, each drawing made thereunder and the obligations of the
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 Lenders 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 Percentages
of the Lenders pursuant to Section 13.04(b) or upon a Lender 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 Percentages of the assigning and
assignee Lender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
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
-12-
18
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the 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 shall not create for the
Letter of Credit Issuer any resulting liability to the Participants.
(c) In the event that the Letter of Credit Issuer makes any
payment under any Letter of Credit and the Borrower shall not have reimbursed
such amount in full to the Letter of Credit Issuer pursuant to Section 2.04(a),
the 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 the Letter of Credit Issuer, the amount
of such Participant's 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 Percentage of such unreimbursed amount for any wrongful
payment made by the 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 the 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 Participant shall make
available to the Administrative Agent for the account of the Letter of Credit
Issuer such Participant's 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 Percentage of the amount of such Unpaid Drawing available to
the Administrative Agent for the account of the Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of the
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 the 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 Letter of Credit
Issuer its 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 the Letter of Credit Issuer its
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 the Letter of Credit Issuer such other Participant's Percentage of any such
payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, the Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's 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 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 that no Participant shall be required to make payments resulting
-13-
19
from the 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 the 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 Letter of Credit Issuer, any Lender or other Person, whether
in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the 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 applicable law, rule or
regulation, 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 the Letter of Credit Issuer or any Lender with any request or directive
(whether or not having the force of law but with which such Lender 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 the Letter of Credit Issuer or
such Lender's participation therein, or (ii) shall impose on the Letter of
Credit Issuer or any Lender any other conditions affecting this Agreement, any
Letter of Credit or such Lender's participation therein; and the result of any
of the foregoing is to increase the cost to the Letter of Credit Issuer or such
Lender of issuing, maintaining or participating in any Letter of Credit, or to
reduce the amount of any sum received or receivable by the Letter of Credit
Issuer or such Lender 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 taxes or similar charges), then, upon demand to the
Borrower by the Letter of Credit Issuer or such Lender (a copy of which notice
shall be sent by the Letter of Credit Issuer or such Lender to the
Administrative Agent), the Borrower shall, subject to Section 1.12(b) (to the
extent applicable), pay to the Letter of Credit Issuer or such Lender such
additional amount or amounts as will compensate the Letter of Credit Issuer or
such Lender for such increased cost or reduction. A certificate submitted to the
Borrower by the Letter of Credit Issuer or such Lender, as the case may be (a
copy of which certificate shall be
-14-
20
sent by the Letter of Credit Issuer or such Lender to the Administrative Agent),
setting forth the basis for the determination of such additional amount or
amounts necessary to compensate the Letter of Credit Issuer or such Lender as
aforesaid shall be conclusive and binding on the Borrower absent demonstrable
error, although the failure to deliver any such certificate shall not release or
diminish any of the Borrower's obligations to pay additional amounts pursuant to
this Section 2.06 upon the subsequent receipt thereof.
2.07 Indemnities. The Borrower hereby agrees to reimburse and
indemnify the Letter of Credit Issuer 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 the 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 that the Borrower shall not be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Letter of Credit Issuer's gross negligence or willful misconduct. To the extent
the Letter of Credit Issuer is not indemnified by the Borrower, the Participants
will reimburse and indemnify the Letter of Credit Issuer, in proportion to their
respective "percentages" of the Total Commitment, 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 the 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 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 the Letter of Credit Issuer's gross negligence or willful misconduct.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of the Non-Defaulting Lenders pro rata on the basis of
their respective Percentages, a facility fee (the "Facility Fee") for the period
from and including the Effective Date to, but not including, the date the Total
Commitment has been terminated, all Loans and Unpaid Drawings have been repaid
in full and all Letters of Credit have terminated, which Facility Fee shall be
equal to the Applicable Facility Fee Percentage, computed at such rate for each
day, on the daily amount of such Lender's Commitment. Accrued Facility Fee shall
be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December of each year and on the date upon which the Total
Commitment is terminated, all Loans and Unpaid Drawings have been repaid in full
and all Letters of Credit have terminated.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of the Non-Defaulting Lenders pro rata on the basis of their respective
Percentages, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee") 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 last
Business Day of each March, June, September and December of each year and on the
first date upon which the Total Commitment is terminated and no Letters of
Credit remain outstanding.
-15-
21
(c) The Borrower agrees to pay to the respective Letter of Credit
Issuer such fee in respect of each Letter of Credit issued by it (the "Facing
Fee") as may be separately negotiated between the Borrower and the respective
Letter of Credit Issuer. Accrued Facing Fees shall be due and payable quarterly
in arrears on the last 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) The Borrower agrees to pay directly to the 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 have been agreed to between the
Borrower and the Letter of Credit Issuer.
(e) The Borrower agrees to pay to the Administrative Agent for the
account of the Non-Defaulting Lenders pro rata on the basis of their respective
Percentages, a utilization fee (the "Utilization Fee") for each day (x) upon
which the Total Unutilized Revolving Loan Commitment is less than two-thirds of
the Total Commitment as in effect on such date and (y) after the Total
Commitment has been terminated, computed at a rate per annum equal to the
applicable Utilization Fee Percentage on the daily aggregate outstanding
principal amount of each Lender's Loans and Percentage of Letter of Credit
Outstandings. Accrued Utilization Fees shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December of
each year and on the date upon which the Total Commitment is terminated.
(f) The Borrower shall pay to the Administrative Agent on the
Effective Date, for its own account and/or for distribution to the Lenders, such
Fees as have heretofore been agreed in writing by the Borrower and the
Administrative Agent.
(g) All computations of Fees shall be made in accordance with
Section 13.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least two
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Commitment, provided that (w) any such
termination shall apply to proportionately and permanently reduce the Commitment
of each Lender, (x) no such reduction shall reduce any Lender's Commitment to an
amount that is less than the sum of (A) the outstanding Loans of such Lender
plus (B) such Lender's Percentage of Letter of Credit Outstandings and (y) 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.
3.03 Mandatory Adjustments of Commitments, etc. The Total
Commitment shall terminate on the earlier of (i) the Maturity Date and (ii)
unless the Required Lenders otherwise consent, the date on which any Change of
Control occurs.
SECTION 4. Payments.
-16-
22
4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay Loans in whole or in part, without premium or penalty, from time to time
on the following terms and conditions: (i) the 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 the Borrower
at least one Business Day prior to the date of such prepayment with respect to
Base Rate Loans and three 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 Lenders; (ii) each partial prepayment of
any Borrowing shall be in an aggregate principal amount of at least $500,000
and, if greater in an integral multiple of $100,000, provided 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)
Eurodollar Loans may only be prepaid pursuant to this Section 4.01 on the last
day of the Interest Period applicable thereto, unless prior prepayment is
accompanied by all breakage costs owing pursuant to Section 1.11 in connection
therewith; and (iv) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be distributed pro rata among the Lenders which made such Loans,
provided that, at the 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 Lender.
4.02 Mandatory Repayments.
(A) Requirements:
(a) (i) If on any date the sum of the aggregate outstanding
principal amount of Loans and the Letter of Credit Outstandings exceeds the
Total Commitment as then in effect, the Borrower shall repay on such date the
principal of Loans in an aggregate amount equal to such excess. If, after giving
effect to the repayment of all outstanding Loans, the aggregate amount of Letter
of Credit Outstandings exceeds the Total Commitment then in effect, the 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 the 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 and the Borrower,
until the proceeds are applied to the secured obligations).
(ii) If on any date the aggregate outstanding principal amount of
the Loans made by a Lender, when combined with such Lender's Percentage of the
Letter of Credit Outstandings on such date (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence of,
Loans incurred on such date), exceeds the Commitment of such Lender, the
Borrower shall repay the principal of Loans of such Lender in an amount equal to
such excess.
-17-
23
(b) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, all then outstanding Loans shall be repaid in full on the
Maturity Date.
(c) On the date on which any Change of Control occurs, unless
otherwise agreed by the Required Lenders, the outstanding principal amount of
all Loans, if any, shall become due and payable in full.
(B) Application:
With respect to each prepayment of Loans required by Section 4.02,
the Borrower may designate the Types of Loans which are to be prepaid and the
specific Borrowing or Borrowings pursuant to which made, provided that (i)
repayments of Eurodollar Loans may only be made pursuant to this Section 4.02 on
the last day of an Interest Period applicable thereto unless no Base Rate Loans
remain outstanding; (ii) if any prepayment of Eurodollar Loans made pursuant to
a single Borrowing shall reduce the outstanding Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for such
Borrowing, such Borrowing shall be converted into Base Rate Loans at the end of
the then current Interest Period applicable thereto; and (iii) each prepayment
of any Loans made pursuant to a Borrowing shall be applied pro rata among the
Lenders which made such Loans. In the absence of a designation by the 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 Loans pursuant to Section 4.02(A) above would result, after giving
effect to the procedures set forth above, in the 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 the 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 the
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 in Cash Equivalents satisfactory to the Administrative
Agent and the 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 Loans that are Eurodollar Loans (or such
earlier date or dates as shall be requested by the Borrower), to repay an
aggregate principal amount of such 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 Lenders whose Loans would otherwise have been
immediately prepaid with the amounts deposited and upon the taking of any action
by the Administrative Agent or the Lenders pursuant to the remedial provisions
of Section 10, 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 such Loans.
-18-
24
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its pro rata share) account of
the Lenders 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 at the Payment Office, it being understood that
written notice by the Borrower to the Administrative Agent to make a payment
from the funds in the Borrower's account at the Payment Office shall constitute
the making of such payment to the extent of such funds held in such account. 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 the 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 tax imposed
on or measured by the net income or net profits of a Lender 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
Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (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, the
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, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which the principal office or applicable lending office of such Lender 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 Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Tax is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent
-19-
25
on or prior to the date of this Agreement, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section
1.13 or 13.04 (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or W-8BEN (or successor
forms) certifying to such Lender'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 Lender is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form W-8ECI or W-8BEN pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit E (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-8BEN (or successor form)
certifying to such Lender'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 Lender 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 the Borrower and the Administrative Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI or W-8BEN (with respect to the benefits of any income tax treaty),
or Form W-8BEN (with respect to the portfolio interest exemption) 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 Lender 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 the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate. Notwithstanding anything to the contrary contained in
Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding
sentence, (x) the 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 or other amounts payable hereunder for the account of any
Lender 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 Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Lender in respect of income or similar taxes
imposed by the United States if (I) such Lender has not provided to the Borrower
the Internal Revenue Service Forms required to be provided to the Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment, other than
interest, to a Lender 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 13.04(b), the
Borrower agrees to pay additional amounts and to indemnify each Lender in the
manner set forth in Section 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 such
-20-
26
Lender shall provide to the Borrower and the Administrative Agent any reasonably
available applicable IRS tax form (reasonably similar in its simplicity and lack
of detail to IRS Form W-8ECI or W-8BEN) 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).
SECTION 5. Conditions Precedent. The occurrence of the Effective
Date pursuant to Section 13.10 and the obligation of the Lenders to make any
Loan on the Effective Date, and the obligation of the Letter of Credit Issuer to
issue Letters of Credit on the Effective Date, 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 Execution of Agreement; Notes. (i) The Effective Date shall
have occurred as provided in Section 13.10 and (ii) there shall have been
delivered to the Administrative Agent for the account of each Lender who has
requested same, an appropriate Note executed by the Borrower, and in the amount,
maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Effective Date, the
Administrative Agent shall have received a certificate dated such date signed by
the President, any Vice President or the Treasurer of the Borrower stating that
all of the applicable conditions set forth in Section 6.01 exist as of such
date.
5.03 Opinions of Counsel. On the Effective Date, the
Administrative Agent shall have received a legal opinion, addressed to the
Administrative Agent and each of the Lenders and dated the Effective Date, from
Xxxxxxxx & Xxxxxx, LLP, counsel to the Borrower, which opinion shall cover the
matters contained in Exhibit F and shall otherwise be in form and substance
reasonably satisfactory to the Administrative Agent.
5.04 Corporate Proceedings. (a) On the Effective Date, the
Administrative Agent shall have received from the Borrower a certificate, dated
the Effective Date, signed by the President, any Vice-President or, the
Treasurer, and attested by the Secretary or Assistant Secretary of the Borrower
in the form of Exhibit G with appropriate insertions and deletions, together
with copies of the Borrower's certificate of incorporation, certified by the
appropriate governmental authority as of recent date, the Borrower's by-laws,
and the resolutions of the Board of Directors of the Borrower, and all of the
foregoing shall be reasonably satisfactory to the Administrative Agent.
(b) On the Effective Date, the Administrative Agent shall have
received a certificate of recent date from the appropriate governmental
authority evidencing the Borrower's existence and good standing in its state of
incorporation, and all other information and copies of all other certificates,
documents and papers, if any, which the Administrative Agent may have reasonably
requested in connection herewith, such documents and papers, where appropriate,
to be certified by proper corporate or governmental authorities.
-21-
27
5.05 Financial Statements; Adverse Change, etc. On or prior to the
Effective Date, the Administrative Agent shall have received true and correct
copies of the audited consolidated financial statements of the Borrower and its
Subsidiaries for the fiscal year ending December 31, 2000 and the unaudited
consolidated financial statements of the Borrower and its Subsidiaries for the
fiscal quarter ending March 31, 2001. On the Effective Date, nothing shall have
occurred since December 31, 2000 (and neither the Lenders nor the Administrative
Agent shall have become aware of any facts or conditions not previously known)
which the Administrative Agent or the Required Lenders shall determine (a) has
had, or is reasonably likely to have, a material adverse effect on the rights or
remedies of the Lenders hereunder or under any other Credit Document, or on the
ability of the Borrower to perform its obligations to them, or (b) has had, or
is reasonably likely to have, a Material Adverse Effect.
5.06 Fees. On the Effective Date, the Borrower shall have paid to
the Administrative Agent, for its own account and for that of the Lenders, all
Fees and invoiced expenses agreed by such parties to be paid on or prior to such
date.
5.07 Insurance Certificates. On or prior to the Effective Date,
the Administrative Agent shall have received insurance certificates from Aon
Risk Services or another firm of independent marine insurance brokers reasonably
acceptable to the Administrative Agent evidencing the insurances required under
Section 8.03 in effect as of the Effective Date.
5.08 Refinancing. On the Effective Date and concurrently with the
incurrence of Loans on such date, all Indebtedness of the Borrower and its
Subsidiaries pursuant to the Existing Credit Agreement and any guaranties
executed in connection therewith shall have been repaid in full, together with
all fees and other amounts owing thereon, all commitments thereunder shall have
been terminated and all letters of credit issued pursuant thereto shall have
been terminated or incorporated hereunder as Letters of Credit as contemplated
by Section 2.01(d).
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of each Lender to make any Loan (including Loans made on the
Effective Date), and the obligation of the Letter of Credit Issuer to issue any
Letter of Credit, is subject, at the time of each such Credit Event, to the
satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of
each such 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 and in each other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to
the making of each Loan, the Administrative Agent shall have received a Notice
of Borrowing meeting the requirements of Section 1.03.
-22-
28
(b) Prior to the issuance of each Letter of Credit, the respective
Letter of Credit Issuer shall have received a Letter of Credit Request meeting
the requirements of Section 2.03(a) (with a copy to the Administrative Agent).
The acceptance of the benefits or proceeds of each Credit Event
shall constitute a representation and warranty by the Borrower to the
Administrative Agent and each of the Lenders that all the conditions specified
in Section 5 and in this Section 6 and applicable to such Credit Event have been
satisfied as of that time. All of the Notes, certificates, legal opinions and
other documents and papers referred to in Section 5 and in this Section 6,
unless otherwise specified, shall be delivered to the Administrative Agent at
the Notice Office for the benefit of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory to the Administrative Agent.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement and to make the Loans and issue
and/or participate in Letters of Credit provided for herein, the Borrower makes
the following representations and warranties to, and agreements with, the
Lenders, 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 7 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):
7.01 Corporate Status. Each Credit Party (i) is a duly organized
and validly existing corporation in good standing under the laws of the
jurisdiction of its organization and has the corporate power and authority to
own its property and assets and to transact the business in which it is engaged,
except in such case where the failure to be so duly organized and validly
existing in good standing and to have such corporate power and authority (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 or remedies of
the Lenders or on the ability of any Credit Party to perform its obligations to
them hereunder and under the other Credit Documents to which it is a party, and
(ii) has 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 would have a Material Adverse Effect.
7.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable against such Person 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).
-23-
29
7.03 No Violation. Neither the execution, delivery and performance
by any Credit Party of the Credit Documents to which it is a party nor
compliance with the terms and provisions thereof, nor the consummation of the
transactions contemplated therein (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 result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, agreement or other instrument
to which the Borrower or any of its Subsidiaries is a party or by which it or
any of its property 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 the
Borrower or any of its Subsidiaries.
7.04 Litigation. There are no actions, suits or proceedings
pending or, to the Borrower's knowledge, after due inquiry, threatened in
writing with respect to the Borrower or any of its Subsidiaries (i) that are
likely to have a Material Adverse Effect or (ii) that are reasonably likely to
have a material adverse effect on the rights or remedies of the Lenders or on
the ability of any Credit Party to perform its obligations to them hereunder and
under the other Credit Documents to which it is a party.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all
Loans shall be utilized to provide for the general corporate purposes of the
Borrower and its Subsidiaries.
(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 T, U or X of the Board 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.
7.06 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 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.
7.07 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries 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.
-24-
30
7.09 True and Complete Disclosure. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to the Administrative Agent or
any Lender for purposes of or in connection with this Agreement or any
transaction contemplated herein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of any such Person in
writing to any Lender 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. There is no fact known to the Borrower 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 Administrative Agent and the Lenders for use in connection with
the transactions contemplated hereby.
7.10 Financial Condition; Financial Statements. (a) On and as of
the Effective Date, on a pro forma basis after giving effect to all Indebtedness
incurred, and Loans to be incurred, on and as of the Effective Date, by the
Borrower and its Subsidiaries in connection herewith, (x) the sum of the assets,
at a fair valuation, of the Borrower and its Subsidiaries taken as a whole will
exceed its debts, (y) the Borrower and its Subsidiaries taken as a whole will
not have incurred or intended to, or believe that they will, incur debts beyond
their ability to pay such debts as such debts mature and (z) the Borrower and
its Subsidiaries taken as a whole will not have unreasonably small capital with
which to conduct its business.
(b) (i) The consolidated balance sheet of the Borrower at December
31, 2000 and the related consolidated statements of operations and cash flows of
the Borrower for the fiscal year, as the case may be, ended as of said date,
which have been examined by PriceWaterhouseCoopers LLP, independent certified
public accountants, who delivered an unqualified opinion in respect therewith,
and (ii) the consolidated balance sheet of the Borrower as of March 31, 2001,
copies of which have heretofore been furnished to the Administrative Agent,
present fairly 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 March 31, 2001 statements, subject to normal and
recurring year-end audit adjustments. All such financial statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently applied except to the extent provided in the notes to
said financial statements. Nothing has occurred since December 31, 2000 that (x)
has had or is reasonably likely to have a material adverse effect on the rights
or remedies of the Lenders hereunder or under any other Credit Document, or on
the ability of any Credit Party to perform its obligations to them, or (y) has
had or is reasonably likely to have a Material Adverse Effect.
(c) Except as reflected in the financial statements and the notes
thereto described in Section 7.10(b) or in Annex V, there were as of the
Effective Date no liabilities or obligations with respect to the Borrower or any
of its Subsidiaries of a nature (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower and its Subsidiaries taken as a whole, except
as incurred subsequent to December 31, 2000 in the ordinary course of business
consistent with past practices.
-25-
31
7.11 Tax Returns and Payments. Each of the Borrower and each of
its Subsidiaries 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. The
Borrower and each of its Subsidiaries has paid, or has provided adequate
reserves (in the good faith judgment of the management of the Borrower) 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 date hereof.
7.12 Compliance with ERISA. (a) Neither the Borrower nor any
Subsidiary nor any ERISA Affiliate has ever maintained or contributed to (or had
an obligation to contribute to) any Plan or any Foreign Pension Plan where any
current or reasonably foreseeable liability of the Borrower with respect to such
Plan or such Foreign Pension Plan would be reasonably likely to have a Material
Adverse Effect. All contributions required to be made with respect to (i) any
employee pension benefit plan (as defined in Section 3(2) of ERISA) maintained
or contributed to by (or to which there is an obligation to contribute of) the
Borrower or a Subsidiary or an ERISA Affiliate and (ii) any Foreign Pension Plan
have been timely made except any such failures to contribute which would not
individually or in the aggregate be reasonably likely to have a Material Adverse
Effect. The Borrower and its Subsidiaries may cease contributions to or
terminate any employee benefit plan (within the meaning of Section 3(3) of
ERISA) maintained or contributed to by (or to which there is an obligation to
contribute of) any of them without incurring any liability which, individually
or in the aggregate would be reasonably likely to have a Material Adverse
Effect.
(b) Each Foreign Pension Plan has been maintained in substantial
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, except such
non-compliances as would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect.
7.13 Patents, etc. The Borrower and each of its Subsidiaries has
obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted.
7.14 Pollution and Other Regulations. (a) Each of the Borrower and
its Subsidiaries is in compliance with all applicable Environmental Laws
governing its business for which failure to comply is reasonably likely to have
a Material Adverse Effect, and neither the Borrower nor any of its Subsidiaries
is liable for any material penalties, fines or forfeitures for failure to comply
with any of the foregoing. All licenses, permits, registrations or approvals
required for the business of the Borrower and each of its Subsidiaries, as
conducted as of the Effective Date, under any Environmental Law have been
secured and the Borrower and each of its Subsidiaries is in substantial
compliance therewith, except such licenses, permits, registrations or approvals
the failure to secure or to comply therewith is not likely to have a Material
Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in any
respect in noncompliance with, breach of or default under any applicable writ,
order, judgment, injunction, or decree to which
-26-
32
the Borrower or such Subsidiary is a party or which would affect the ability of
the Borrower or such Subsidiary to operate any material asset 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 as are not
likely to, in the aggregate, have a Material Adverse Effect. There are as of the
Effective Date no Environmental Claims pending or, to the knowledge, after due
inquiry, of the Borrower, threatened, against the Borrower or any of its
Subsidiaries wherein an unfavorable decision, ruling or finding would be
reasonably likely to have a Material Adverse Effect. There are no facts,
circumstances, conditions or occurrences on any Real Property, offshore drilling
rig, vessel or other facility owned or operated by the Borrower or any of its
Subsidiaries that is reasonably likely (i) to form the basis of an Environmental
Claim against the Borrower, any of its Subsidiaries or any Real Property,
offshore drilling rig, vessel or other facility owned by the Borrower or any of
its Subsidiaries, or (ii) to cause such Real Property, offshore drilling rig,
vessel or other facility to be subject to any restrictions on its ownership,
occupancy, use or transferability under any Environmental Law, except in each
such case, such Environmental Claims or restrictions that individually or in the
aggregate are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property,
offshore drilling rig, vessel or other facility at any time owned or operated by
the Borrower or any of its Subsidiaries or (ii) released on or from any such
Real Property, offshore drilling rig, vessel or other facility, in each case
where, to the Borrower's knowledge, after due inquiry, such occurrence or event
individually or in the aggregate is reasonably likely to have a Material Adverse
Effect.
7.15 Properties. The Borrower and each of its Subsidiaries has
title to all material properties owned by them including all property reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries as
referred to in Section 7.10(b), 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.
7.16 Compliance with Statutes, etc. Each of the Borrower and each
of its Subsidiaries is in compliance with all applicable statutes, regulations,
rules and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such non-compliance as is not
reasonably likely to, individually or in the aggregate, have a Material Adverse
Effect.
7.17 Labor Relations. Neither the Borrower nor its Subsidiaries is
engaged in any unfair labor practice that is reasonably likely to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against the Borrower or any of its Subsidiaries 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 the Borrower or any of its Subsidiaries or, to the Borrower's
knowledge, after due inquiry, threatened against any of them, (ii) no strike,
labor dispute, slowdown or stoppage pending against the Borrower or any of its
Subsidiaries or, to the best of the Borrower's knowledge, threatened against the
Borrower or any of its Subsidiaries and (iii) no union representation peti-
-27-
33
tion existing with respect to the employees of the Borrower or any of its
Subsidiaries and no union organizing activities are taking place, except with
respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate, such as is not reasonably likely to have a
Material Adverse Effect.
7.18 Existing Indebtedness. The consolidated balance sheets of the
Borrower and its Subsidiaries referred to in Section 7.10(b) and the
Indebtedness described on Annex V constitute a true and complete list of all
Indebtedness of the Borrower and each of its Subsidiaries on the Effective Date
and which is to remain outstanding after the Effective Date (excluding the Loans
and the Letters of Credit, the "Existing Indebtedness"), showing the aggregate
principal amount thereof as of the Effective Date.
SECTION 8. Affirmative Covenants. The Borrower covenants and
agrees that on the Effective 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, are paid in full:
8.01 Information Covenants. The Borrower will furnish to the
Administrative Agent (with sufficient copies for each of the Lenders, and the
Administrative Agent will promptly forward to each of the Lenders):
(a) Annual Financial Statements. Within 120 days after the close
of each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries, as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of 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 the Borrower and its
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 quarterly
accounting periods in each fiscal year, the consolidated balance sheet of the
Borrower and its Subsidiaries, as at the end of such quarterly period and the
related consolidated statements of income and retained earnings and of cash
flows for such quarterly period and 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, all of which shall be certified by the Senior Vice President-Finance,
Treasurer or Controller of the Borrower, subject to changes resulting from audit
and normal year-end audit adjustments.
(c) Compliance Certificate. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a certificate of
the Borrower signed by its Senior Vice President-Finance, Treasurer, Controller
or other Authorized Officer in the form of Exhibit I 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 re-
-28-
34
quired to establish whether the Borrower and its Subsidiaries were in compliance
with the provisions of Section 9 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 (x) ten days after the Borrower obtains knowledge thereof, notice of the
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 the Borrower proposes to take with respect thereto and (y) ten
Business Days after the Borrower obtains knowledge thereof, notice of the
commencement of or any significant development in any litigation or governmental
proceeding pending against the Borrower or any of its Subsidiaries which is
likely to have a Material Adverse Effect or is likely to have a material adverse
effect on the ability of any Credit Party to perform its obligations hereunder
or under any other Credit Document.
(e) SEC Reports. Promptly upon transmission thereof, copies of any
material filings and registration with, and reports to, the SEC by the Borrower
or any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as the Borrower or any of its Subsidiaries shall
generally send to holders of their capital stock in their capacity as such
holders (in each case to the extent not theretofore delivered to the
Administrative Agent pursuant to this Agreement).
(f) Credit Rating. As soon as possible and in any event within 10
days after the Borrower obtains knowledge thereof, notice of any change in (i)
the credit rating assigned by Xxxxx'x or S&P to any long-term unsecured debt of
the Borrower (including, without limitation, any change in the Xxxxx'x Credit
Rating or the S&P Credit Rating) and/or (ii) the stated implied senior debt
rating assigned by Xxxxx'x or S&P with respect to the Borrower; notice of such
change and the date on which it was first announced by the applicable rating
agency.
(g) Other Information. From time to time, such other information
or documents (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of the Required Lenders may reasonably request.
8.02 Books, Records and Inspections. The Borrower will, and will
cause its Subsidiaries to, permit, upon reasonable notice to the Senior Vice
President-Finance, Controller or any other Authorized Officer of the Borrower,
officers and designated representatives of the Administrative Agent (at the
expense of the Administrative Agent, but after the occurrence and during the
continuance of an Event of Default, at the expense of the Borrower) or the
Required Lenders (at the expense of such Lenders), to the extent necessary, to
examine the books of account of the Borrower and any of its Subsidiaries and
discuss the affairs, finances and accounts of the Borrower and of any of its
Subsidiaries with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or the Required Lenders may
desire.
8.03 Maintenance of Property; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, at all times maintain in full force and
effect insurance in such amounts with carriers of such insurance industry
ratings, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice for
-29-
35
similarly situated insureds. The Borrower will, and will cause each of its
Subsidiaries to, furnish to the Administrative Agent on or before May 31st of
each year, beginning with calendar year 2002, a certificate evidencing the
insurance carried by the Borrower and its Subsidiaries.
8.04 Payment of Taxes. The Borrower will pay and discharge, and
will cause each of its Subsidiaries 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, might become a
Lien or charge upon any properties of the Borrower or any of its Subsidiaries,
provided that neither the 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 (in the
good faith judgment of the management of the Borrower) with respect thereto in
accordance with GAAP.
8.05 Consolidated Corporate Franchises. The 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 corporate existence, material
rights and authority, unless the failure to do so is not reasonably likely to
have a Material Adverse Effect, provided that any transaction permitted by
Section 9.02 will not constitute a breach of this Section 8.05.
8.06 Compliance with Statutes, etc. The 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, in respect of the conduct of its business and the ownership
of its property other than those the non-compliance with which would not have a
Material Adverse Effect or would not have a material adverse effect on the
ability of any Credit Party to perform its obligations under any Credit Document
to which it is party.
8.07 Good Repair. Except for offshore drilling rigs and vessels
currently under or scheduled to be repaired or which have been damaged or have
suffered a casualty as to which (within a reasonable period of time) the
Borrower has not made a determination whether to replace or repair, or if the
determination to replace or repair has been made, as to which such replacement
or repairs are being undertaken, subject to availability of equipment, materials
and/or repair facilities, the Borrower will, and will cause each of its
Subsidiaries to, keep its properties and equipment 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 9.02, 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 the
failure to do so is reasonably likely to have a Material Adverse Effect.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
financial reporting purposes, cause (i) each of its fiscal years to end on
December 31 of each year and (ii) each of its fiscal quarters to end on March
31, June 30, September 30 and December 31 of each year.
-30-
36
8.09 Use of Proceeds. All proceeds of the Loans shall be used as
provided in Section 7.05.
8.10 Maintenance of Corporate Existence and Good Standing. The
Borrower will, and will cause each other Credit Party to, satisfy customary
corporate formalities, including the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of corporate offices and records and to remain a duly
organized and validly existing corporation in good standing under the laws of
the jurisdiction of its organization. Neither the Borrower nor any other Credit
Party shall take any action, or conduct its affairs in a manner, which is likely
to result in the corporate existence of the Borrower or any other Credit Party
being ignored, or in the assets and liabilities of the Borrower or any of its
Subsidiaries being substantively consolidated with those of any other Person in
a bankruptcy, reorganization or other insolvency proceeding.
8.11 Guarantors. The Borrower shall promptly cause such Domestic
Subsidiaries as are required to execute and deliver a guaranty of the
Obligations in order that the Borrower remain in compliance with Section 9.03(g)
to execute and deliver such a guaranty in substantially the form of Exhibit H
hereto (each, a "Guaranty").
8.12 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower, any Subsidiary or any ERISA Affiliate knows or has reason to
know that: (a) a material contribution required to be made with respect to (i)
any employee pension benefit plan (as defined in Section 3(2) of ERISA)
maintained or contributed to by (or to which there is an obligation to
contribute of) the Borrower or a Subsidiary or an ERISA Affiliate or (ii) any
Foreign Pension Plan has not been timely made or (b) the Borrower or any
Subsidiary may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2)
of ERISA), the Borrower will deliver to each of the Lenders a certificate of the
Senior Vice President-Finance or Controller of the Borrower setting forth
details as to such occurrence and the action, if any, that the Borrower, such
Subsidiary or such ERISA Affiliate is required or proposes to take, together
with any notices required or proposed to be given to or filed with or by the
Borrower, the Subsidiary, the ERISA Affiliate, a plan participant or the plan
administrator.
SECTION 9. Negative Covenants. The Borrower hereby covenants and
agrees that as of the Effective 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, are paid in full:
9.01 Changes in Business. The Borrower will not, and will not
permit any of its Subsidiaries to, materially alter the character of the
business of the Borrower and its Subsidiaries taken as a whole from that
conducted at the Effective Date (including any material expansion outside of the
businesses of oil and gas drilling, offshore contract drilling, turnkey
drilling, engineering and production management services, floating production
and storage operations, well construction management, field development and
management, multi-service vessel
-31-
37
management, engineering and design, drilling rig and vessel construction,
reconstruction and retrofitting, technology research development and marketing
and related businesses or operations currently conducted or hereafter entered
into in connection therewith).
9.02 Consolidation, Merger, Sale of Assets, etc. The Borrower
shall not, and shall not permit any other Credit Party to, directly or
indirectly, merge with or into or consolidate with any other Person, or agree,
become or remain liable (contingently or otherwise) to do any of the foregoing,
except that, so long as no Default or Event of Default exists or would result
therefrom, (i) the Borrower may merge with another Person so long as the
Borrower is the surviving corporation, and (ii) any Guarantor may merge with the
Borrower so long as the Borrower is the surviving corporation, or may merge with
another Person so long as a Guarantor is the surviving entity. In addition to
the foregoing, the Borrower and its Subsidiaries, taken as a whole, shall not
convey, sell, lease, assign, transfer or otherwise dispose of, in one or a
series of transactions, all or substantially all of their property, business or
assets.
9.03 Indebtedness. The Borrower will not, and will not permit any
of its Subsidiaries to contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Indebtedness existing on the Effective Date and listed on
Annex V, and to any subsequent extensions, refinancings or renewals thereof, so
long as such extension, refinancing or renewal does not cause the aggregate
principal amount thereof to increase from that in effect on the date of such
extension, refinancing or renewal;
(c) Indebtedness consisting of intercompany loans and advances;
(d) Indebtedness under any Interest Rate Agreements, foreign
exchange agreement or derivatives obligations entered into by the Borrower in
the ordinary course of business and not for speculative purposes;
(e) Indebtedness of the Borrower or any Subsidiary of the Borrower
under performance guarantees and standby letters of credit issued in the
ordinary course of business;
(f) Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of the Borrower or is merged with or into the Borrowers or
any Subsidiary of the Borrower; provided that such Indebtedness is not incurred
in contemplation of such transaction; and
(g) Other Indebtedness of the Borrower and its Subsidiaries that
may be incurred in pro forma compliance with the financial covenants set forth
in Sections 9.08 (as of the last day of the most recently ended four fiscal
quarter period) and 9.09 (immediately after giving effect thereto) so long as
(i) no Default or Event of Default exists at the time of incurrence thereof or
would result therefrom and (ii) all such indebtedness of Subsidiaries of the
Borrower that are not Guarantors shall not at any time exceed an amount equal to
ten percent (10%) of the Consolidated Net Tangible Assets of the Borrower and
its Subsidiaries; provided that, to the
-32-
38
extent that any Indebtedness of a Foreign Subsidiary of the Borrower would cause
the 10% limitation described in clause (ii) to be exceeded, the Borrower may
substitute one or more non-Guarantor Domestic Subsidiaries with aggregate total
tangible assets less total liabilities at all times at least as great as such
Foreign Subsidiary to become Guarantors hereunder.
9.04 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter acquired
or sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable or notes with recourse to the Borrower or any Subsidiary
of the Borrower) or assign any right to receive income, or file or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested
in good faith and by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of the Borrower) have been established;
(b) Liens imposed by law or arising by operation of law which were
incurred in the ordinary course of business, such as carriers', warehousemen's
and mechanics' Liens, statutory landlord's Liens, maritime Liens and other
similar Liens arising in the ordinary course of business, and (x) which do not
in the aggregate materially detract from the value of the Borrower's or any
Subsidiary's property or assets or materially impair the use thereof in the
operation of the business of the Borrower or any Subsidiary or (y) which are
being contested in good faith by appropriate proceedings (including the
providing of bail), which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to such Lien or procuring
the release of the property or assets subject to such Lien from arrest or
detention;
(c) Liens created in favor of the Lenders;
(d) Liens existing on the Effective Date and listed on Annex VI,
and Liens incurred pursuant to subsequent extensions, refinancings or renewals
of the underlying Indebtedness secured thereby so long as no additional assets
of the Borrower or any of its Subsidiaries are pledged in support thereof;
(e) Liens arising from judgments, decrees or attachments (or
securing of appeal bonds with respect thereto) to the extent not covered by
insurance, so long as the obligations in connection therewith do not exceed
$25,000,000 in the aggregate and do not otherwise give rise to an Event of
Default under Section 10.07;
(f) Liens existing on the Effective Date on the Noble Xxxx Xxxxxx,
Xxxxx Xxxx Xxxxx and Xxxxx Xxx Xxxxxxxx, to secure up to $287,000,000 of
Existing Indebtedness, less any principal repayments thereof since December 31,
2000;
(g) Liens securing Indebtedness of Non-Wholly Owned Subsidiaries
permitted by Section 9.03(c) and owing to the Borrower or any of its Wholly
Owned Subsidiaries, provided
-33-
39
that no such Liens shall attach to any asset of any Subsidiary which becomes a
Guarantor pursuant to Sections 8.11 and/or 9.03(g) unless the secured party is
itself a Guarantor;
(h) Liens on assets leased or acquired after the Effective Date
(including by way of acquisition of the capital stock or other equity interests
of any Person), or newly constructed after the date hereof, and Liens on any
existing assets materially upgraded (i.e., upgrades of $10 million or more)
after the date hereof, provided that (i) such Liens secure Indebtedness
otherwise permitted hereunder, (ii) such Liens exist on the date of such
acquisition or are incurred within one year following such lease, acquisition,
construction or upgrade, (iii) the Indebtedness secured by such Liens does not
exceed the cost of such leased, acquired or constructed asset or the cost of
such upgrade, as applicable, and (iv) such Liens shall not apply to any other
property or assets of the Borrower and its Subsidiaries;
(i) Other Liens of the Borrower and its Subsidiaries not described
in clauses (a) through (i) above securing Indebtedness in an aggregate
outstanding principal amount not to exceed $125,000,000 at any one time.
9.05 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, make any Restricted Payments, other than
Restricted Payments to any Credit Party, except that the Borrower and its
Subsidiaries may make Restricted Payments (i) so long as no Default or Event of
Default exists or would result therefrom and (ii) the Borrower shall be in pro
forma compliance with Sections 9.08 (for the last day of the most recently ended
fiscal quarter) and 9.09 (immediately after giving effect thereto).
9.06 Restrictions on Subsidiaries. The Borrower will not, and will
not permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist any encumbrance or restriction which prohibits or otherwise restricts (A)
the ability of any Subsidiary to (a) pay dividends or make other distributions
or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans
or advances to the Borrower or any Subsidiary, (c) transfer any of its
properties or assets to the Borrower or any Subsidiary or (B) the ability of the
Borrower or any other Subsidiary of the Borrower to create, incur, assume or
suffer to exist any Lien upon its property or assets to secure the Obligations,
other than prohibitions or restrictions existing under or by reason of:
(i) this Agreement and the other Credit Documents;
(ii) applicable law;
(iii) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices;
(iv) any restriction or encumbrance with respect to a Subsidiary
of the Borrower imposed pursuant to 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; and
-34-
40
(v) Permitted Liens and any documents or instruments governing the
terms of any Indebtedness or other obligations secured by any such
Liens, provided that such prohibitions or restrictions apply only to
the assets subject to such Liens.
9.07 Transactions with Affiliates. (a) The Borrower will not, and
will not permit any Subsidiary to, enter into any transaction or series of
transactions after the Effective Date whether or not in the ordinary course of
business, with any Affiliate other than on terms and conditions substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm's-length transaction
with a Person other than an Affiliate, provided that the foregoing restrictions
shall not apply to (i) employment arrangements entered into in the ordinary
course of business with officers of the Borrower and its Subsidiaries, (ii)
customary fees paid to members of the Board of Directors of the Borrower and of
its Subsidiaries, (iii) immaterial transactions with the officers or members of
the Board of Directors of the Borrower or its Subsidiaries and (iv) immaterial
transactions with Affiliates; and
(b) The Borrower will not and will not permit any Guarantor to
transfer any assets to any Subsidiary which is not a Guarantor unless,
immediately after giving effect thereto, the Borrower shall remain in compliance
with the provisions of Section 9.03 (including, without limitation, Section
9.03(g)).
9.08 Interest Coverage Ratio. The Borrower shall not permit the
Interest Coverage Ratio on the last day of any period of four consecutive fiscal
quarters of the Borrower, taken as one accounting period, to be less than
3.00:1.00.
9.09 Leverage Ratio. The Borrower shall not permit the Leverage
Ratio at any time to be more than 0.40:1.00.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall default in the payment when due
of any principal of the Loans or default in the payment when due, and such
default shall continue for more than two Business Days, of any interest, Fees,
Unpaid Drawings or other amounts owing hereunder or under any other Credit
Document; or
10.02 Representations, etc. Any representation, warranty or
statement made by the Borrower herein or in any other Credit Document or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
10.03 Covenants. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 8.01(d), 8.08 or 9 or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in
Sections 10.01, 10.02 or clause (a) of this Section 10.03) contained in
-35-
41
this Agreement, and such default shall continue unremedied for a period of at
least 30 days after notice to the Borrower by the Administrative Agent or the
Required Lenders; or
10.04 Default Under Other Agreements. (a) The Borrower or any of
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) 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 such Indebtedness of the Borrower or any of its Subsidiaries 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 that it shall not constitute an Event of Default pursuant to this
Section 10.04 unless the aggregate amount of all Indebtedness referred to in
clauses (a) and (b) above exceeds $25,000,000 at any one time; or
10.05 Bankruptcy, etc. The Borrower or any Subsidiary 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 the
Borrower or any other Credit Party and the petition is not controverted within
10 days, or 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 the Borrower or any other
Credit Party; or the Borrower or any other Credit Party 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 the Borrower or any
other Credit Party; or there is commenced against the Borrower or any other
Credit Party any such case or proceeding which remains undismissed for a period
of 60 days; or the Borrower or any other Credit Party is adjudicated insolvent
or bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; the Borrower or any other Credit Party 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 60 days; or the
Borrower or any other Credit Party makes a general assignment for the benefit of
creditors; or any corporate action is taken by the Borrower or any other Credit
Party for the purpose of effecting any of the foregoing; or
10.06 Guaranty. Any Guaranty or any provision thereof shall, after
execution and delivery thereof, cease to be in full force and effect, or any
Guarantor or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm all or any portion of such Guarantor's obligation thereunder, or any
Guarantor shall default in the observance of any term, covenant or agreement on
its part to be performed or observed pursuant thereto and such default (other
than any default arising from a failure to make any payment thereunder) shall
continue unremedied for a period of at least 30 days after notice to the
Borrower by the Administrative Agent or the Required Lenders; or
-36-
42
10.07 Judgments. One or more unpaid judgments or decrees shall be
entered against the Borrower or any Subsidiary involving a liability not covered
by insurance of $25,000,000 or more in the aggregate for all such judgments and
decrees for the Borrower and the other Credit Parties and any such judgments or
decrees shall not have been vacated, discharged or stayed or bonded pending
appeal within 30 days from the entry thereof for domestic judgments or 60 days
from the entry thereof for foreign judgments; or
10.08 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is reasonably likely to have a
trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is reasonably likely to be terminated or to be
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made with respect to a
Plan or a Foreign Pension Plan is not timely made, the Borrower or any of its
Subsidiaries or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the Borrower, or any of its Subsidiaries, has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or Plans
or Foreign Pension Plans, a "default," within the meaning of Section 4219(c)(5)
of ERISA, shall occur with respect to any Plan; any applicable law, rule or
regulation is adopted, changed or interpreted, or the interpretation or
administration thereof is changed, in each case after the date hereof, by any
governmental authority or agency or by any court (a "Change in Law"), or, as a
result of a Change in Law, an event occurs following a Change in Law, with
respect to or otherwise affecting any Plan; (b) there shall result from any such
event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (c) such
liability (including any liability underlying any such lien or security
interest, individually, or in the aggregate), exceeds $25,000,000; or
10.09 Change of Control. Any Change of Control shall occur;
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 Lenders, by written notice to the Borrower,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (provided that,
if an Event of Default specified in Section 10.05 shall occur with respect to
the Borrower or any
-37-
43
Subsidiary, 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 Lender shall forthwith
terminate immediately and any Facility Fee 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 the Borrower; (iii)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (iv) direct the Borrower to pay (and the Borrower hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default specified
in Section 10.05 in respect of the Borrower, it will pay) to the Administrative
Agent at the Payment Office such additional amounts of cash, to be held as
security for the 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 10 to repay Obligations.
SECTION 11. 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:
"Additional Loans" shall have the meaning provided in Section
1.14(a).
"Adjusted Consolidated EBITDA" shall mean for any period
Consolidated EBITDA for such period, less cash Dividends and cash taxes paid
during such period, plus, without duplication, cash payments for the repurchase
of common stock made pursuant to Section 9.05.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.09.
"Affected Eurodollar Loan" shall have the meaning provided in
Section 4.02(B).
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and officers of such Person), 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" shall mean, collectively CBK, in its capacity as
Administrative Agent, Xxxxx Fargo Bank Texas, National Association and SunTrust
Bank, in their capacities as Documentation Agents and The Bank of
Tokyo-Mitsubishi, Ltd. and Westdeutsche-Landesbank Girozentrale, New York
Branch, in their capacities as Syndication Agents.
-38-
44
"Agreement" shall mean this Credit Agreement, as the same may be
modified, amended and/or supplemented from time to time.
"Applicable Eurodollar Margin" shall at all times be a percentage
per annum determined in accordance with the Pricing Grid set forth on Annex III
hereto and the Borrower's then applicable Credit Rating.
"Applicable Facility Fee Percentage" shall at all times be a
percentage per annum determined in accordance with the Pricing Grid set forth on
Annex III hereto and the Borrower's then applicable Credit Rating.
"Applicable Utilization Fee Percentage" shall at all times be a
percentage per annum determined in accordance with the Pricing Grid set forth on
Annex III hereto and the Borrower's then applicable Credit Rating.
"Approved Bank" shall have the meaning provided in the definition
of "Cash Equivalents."
"Assignment and Assumption Agreement" shall mean the Assignment
and Assumption Agreement substantially in the form of Exhibit J (appropriately
completed).
"Authorized Officer" shall mean any senior officer of the Borrower
designated as such in writing to the Administrative Agent by the Borrower.
"Available Unutilized Commitment" for each Lender, shall mean the
excess of (i) the Commitment of such Lender over (ii) the sum of (x) the
aggregate outstanding principal amount of Loans made by such Lender plus (y)
such Lender's Percentage of the Letter of Credit Outstandings at such time.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" at any time shall mean the higher of, (i) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate, and (ii) the
Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"Borrowing" shall mean the incurrence of one Type of Loan pursuant
to the Facility by the Borrower from all of the Lenders with respect to such
Facility on a pro rata basis on a given date (or resulting from conversions on a
given date), having in the case of Eurodollar Loans the same Interest Period;
provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of any related Borrowing of Eurodollar Loans.
-39-
45
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) 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
(ii) 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 (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"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.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) 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 five years from the date of acquisition, or repurchase obligations with
respect thereto, (ii) U.S. dollar denominated time deposits, certificates of
deposit, bankers' acceptances and Eurocurrency deposits of (x) any Lender, (y)
any domestic commercial bank of recognized standing having capital and surplus
in excess of $100,000,000 or (z) any 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, (iii) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
any Lender or Approved Bank or by the parent company of any Lender or Approved
Bank and commercial paper issued by, or guaranteed by, any corporation 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, 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 mutual funds having assets in excess of
$100,000,000.
"CBK" shall mean Christiania Bank og Kreditkasse ASA, New York
Branch, in its individual capacity.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.
"Change of Control" shall mean (a) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total
-40-
46
voting power of the Voting Stock of the Borrower or (b) during any period of two
consecutive years individuals who at the beginning of such period constituted
the Board of Directors of the Borrower (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Borrower was approved by a vote of a majority of the
directors of the Borrower 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 the Borrower then in office.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"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 on the
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Commitment" shall mean, with respect to each Lender, the amount
set forth opposite such Lender's name in Annex I directly below the column
entitled "Commitment," as the same may be (x) reduced from time to time pursuant
to Sections 3.02, 3.03 and/or 10, (y) adjusted from time to time as a result of
assignments to or from such Lender pursuant to Section 13.04, or (z) increased
from time to time pursuant to Section 1.14.
"Consolidated EBIT" 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 and (v) losses on sales of assets (excluding sales in
the ordinary course of business) and other extraordinary losses less (B) the
amount 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 EBITDA" shall mean, for any period, the sum of the
amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense of
the Borrower and its Subsidiaries and (iii) amortization expense of the Borrower
and its Subsidiaries, all as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Funded Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(including the Loans) of the Borrower and its Subsidiaries on a consolidated
basis as determined in accordance with GAAP, excluding all Contingent
Obligations relating to the Indebtedness of any Person which is included in the
calculation of Consolidated Funded Indebtedness of the Borrower and its
Subsidiaries.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases) of the Borrower
and its Subsidiaries in accordance with GAAP on a consolidated basis with
respect to all outstanding Indebtedness of the Borrower and its Subsidiaries.
-41-
47
"Consolidated Net Income" shall mean for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP.
"Consolidated Net Tangible Assets" shall mean the book value of
all assets of the Borrower and its Subsidiaries determined in accordance with
GAAP minus (x) current liabilities and (y) the book value of all goodwill and
other intangible assets determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any time, shareholder's
equity of the Borrower and its Subsidiaries on a consolidated basis determined
in accordance with GAAP.
"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 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 each
Guaranty (if any) and any documents executed in connection therewith.
"Credit Event" shall mean and include the making of a Loan or the
issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and each Guarantor (if
any).
"Credit Rating" shall mean the Borrower's credit rating in respect
of its senior unsecured long term debt obligations as determined by reference to
the S&P Credit Rating and the Moody's Credit Rating, there being six categories
for purposes of this Agreement:
S&P Credit Rating Moody's Credit Rating
----------------- ---------------------
Category 1 A+, or higher A1, or higher
-42-
48
Category 2 A A2
Category 3 A- A3
Category 4 BBB+ Baa1
Category 5 BBB Baa2
Category 6 BBB- or lower Baa3 or lower
In the event that none of the Borrower's senior unsecured long
term debt is rated by the Rating Agencies, the Borrower shall be deemed to have
a category 6 Credit Rating. If only one Credit Rating exists at any time, then
such Credit Rating shall be utilized. In the event of a split rating of two or
more Categories, the Category one below the higher Category will apply. In the
event that the S&P Credit Rating and Moody's Credit Rating differ by one
Category, the higher of the two shall apply. In the event that either S&P or
Moody's revises its rating system as in effect on the Effective Date, the
Borrower's Credit Rating shall be determined based on the rating which is most
analogous to the applicable rating set forth above.
If any Credit Rating shall be downgraded by Moody's or S&P, such
change shall be effective for purposes of this definition as of the Business Day
on which such change in Credit Rating is announced by Moody's and/or S&P, as the
case may be, provided that nothing herein shall relieve the Borrower of its
obligation to notify the Lenders of any such change pursuant to Section 8.01. If
any credit rating shall be upgraded by Moody's or S&P, such change shall be
effective for purposes of this definition as of the Business Day upon which the
Lenders receive notice of any such change pursuant to Section 8.01.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Dividend" shall mean to declare or pay on the part of the
Borrower or any of its Subsidiaries any dividends (other than dividends payable
solely in capital stock of such Person) 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 now or hereafter outstanding (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 of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of the Borrower or any other Subsidiary, as the
case may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock).
"Dollars" shall mean freely transferable lawful money of the
United States.
-43-
49
"Dollar Equivalent" of an amount denominated in any currency other
than Dollars (the "applicable currency") shall mean, at any time of
determination thereof, the amount of Dollars which could be purchased with the
amount of the applicable currency involved in such computation at the spot
exchange rate therefor as quoted by the Administrative Agent as of 11:00 a.m.
(New York time) on the date two Business Days prior to the date of any
determination thereof.
"Domestic Subsidiary" shall mean, as to any Person, any Subsidiary
that is incorporated under the laws of the United States, any State thereof or
any territory thereof.
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined by Regulation D
of the Securities Act of 1933).
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by the Borrower or any of its Subsidiaries solely in the
ordinary course of such Person's business and not in response to any third party
action or request of any kind) 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 injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, guide, policy and rule
of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
or Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the
Toxic Substances Control Act, 15 U.S.C. Section 7401 et seq.; the Clean Air Act,
42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section
3808 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; and
any applicable 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. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with the Borrower or any Subsidiary would be
deemed to be a "single employer"
-44-
50
(i) within the meaning of Sections 414(b), (c), (m) and (o) of the Code or (ii)
as a result of the Borrower or any Subsidiary being or having been a general
partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period
for a Loan, the offered rate (rounded upward to the nearest 1/16 of one percent)
for deposits of Dollars for a period equivalent to such period at or about 11:00
A.M. (London time) on the second London Banking Day before the first day of such
period as is displayed on Telerate page 3750 (British Bankers' Association
Interest Settlement Rates) (or such other page as may replace such page 3750 on
such system or on any other system of the information vendor for the time being
designated by the British Bankers' Association to calculate the BBA Interest
Settlement Rate (as defined in the British Bankers' Association's Recommended
Terms and Conditions ("BBAIRS" terms) dated August 1985)), provided that if on
such date no such rate is so displayed, the Eurodollar Rate for such period
shall be the rate quoted to the Administrative Agent as the offered rate for
deposits of Dollars in an amount approximately equal to the amount in relation
to which the Eurodollar Rate is to be determined for a period equivalent to such
period by prime banks in the London Interbank Market at or about 11:00 A.M.
(London time) on the second Banking Day before the first day of such period.
"Event of Default" shall have the meaning provided in Section 10.
"Existing Credit Agreement" shall mean the Credit Agreement, dated
as of August 14, 1997, among the Borrower, various lending institutions, Credit
Lyonnais New York Branch, as Documentation Agent and CBK, as Arranger and
Administrative Agent, as the same shall have been amended to, but not including,
the Effective Date.
"Existing Indebtedness" shall have the meaning provided in Section
7.18.
"Facility" shall mean the credit facility established under this
Agreement, evidenced by the Notes.
"Facility Fee" shall have the meaning provided in Section 3.01(a).
"Facing Fee" shall have the meaning provided in 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.
-45-
51
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America, which 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 or the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 9, including defined terms as used therein, are subject to Section
13.07(a).
"Guarantor" shall mean each Domestic Subsidiary of the Borrower from
time to time party to a Guaranty.
"Guaranty" shall have the meaning provided in Section 8.11.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained electric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vii) all net obligations of such Person
under Interest Rate Agreements and (viii) all Contingent Obligations of such
Person (other than Contingent Obligations arising from the guaranty by such
Person of Permitted Indebtedness of the Borrower and/or its Subsidiaries),
provided that Indebtedness shall not include trade payables and accrued
expenses, in each case arising in the ordinary course of business.
"Interest Coverage Ratio" shall mean, for any period, the ratio of (i)
Adjusted Consolidated EBITDA for such period to (ii) Consolidated Interest
Expense for such period.
-46-
52
"Interest Period" with respect to any Eurodollar Loan shall have the
meaning provided in 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 the Borrower or
any Subsidiary against interest rate risk.
"Investments" shall mean and include (i) lending money or credit or
making advances to any Person (net of any repayments or returns thereof), (ii)
purchasing or acquiring any stock, obligations or securities of, or any other
interest in, or making capital contributions to any Person, or (iii)
guaranteeing the debt or obligations of any other Person.
"Leasehold" of any Person means 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 the
Borrower or its Subsidiaries as may be supported by a Letter of Credit in
accordance with the policies of the respective Letter of Credit Issuer.
"Lender" shall have the meaning provided in the first paragraph of
this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.05(c) or (ii) a Lender
having notified the Administrative Agent and/or the Borrower that it does not
intend to comply with the obligations under Section 1.01 or under Section
2.05(c).
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean CBK, Westdeutsche Landesbank
Girozentrale, New York Branch, SunTrust Bank, The Fuji Bank, Limited, The Bank
of Tokyo-Mitsubishi, Ltd. and any other Lender which may, in such Lender's sole
discretion and with the consent of the Administrative Agent (such consent not to
be unreasonably withheld), agree to become a Letter of Credit Issuer hereunder
from time to time.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any date of determination, the ratio
of Consolidated Funded Indebtedness on such date to Total Capitalization on such
date.
-47-
53
"Lien" shall mean any mortgage, pledge, security interest, security
title, encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement or
any lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on
the business, property, assets, liabilities, operations, financial condition or
prospects of the Borrower, and its Subsidiaries taken as a whole.
"Maturity Date" shall mean the fifth anniversary of the Effective
Date.
"Minimum Borrowing Amount" shall mean (i) for Loans maintained as
Base Rate Loans, $1,000,000, and (ii) for Loans maintained as Eurodollar Loans,
$5,000,000.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. and its
successors.
"Moody's Credit Rating" shall mean the rating level (it being
understood that a rating level shall include all alphabetical (including case
distinctions), numerical and (+) and (-) modifiers) assigned by Moody's to the
senior unsecured long term debt of the Borrower.
"Non-Defaulting Lender" shall mean each Lender other than a
Defaulting Lender.
"Non-Wholly Owned Subsidiary" shall mean any Subsidiary of the
Borrower which is not a Wholly-Owned Subsidiary.
"Note" shall have the meaning provided in Section 1.05(a).
"Notice of Borrowing" shall have the meaning provided in Section
1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent at
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the
Administrative Agent may designate to the 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 Lender pursuant to the terms of this Agreement
or any other Credit Document.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Administrative Agent
at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the
Administrative Agent may designate to the Borrower from time to time.
-48-
54
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean for each Lender the percentage obtained by
dividing such Lender's Commitment by the Total Commitment, provided that if the
Total Commitment has been terminated, the Percentage of each Lender shall be
determined by dividing such Lender's Commitment immediately prior to such
termination by the Total Commitment immediately prior to such termination.
"Permitted Indebtedness" shall mean Indebtedness described in
Section 9.03(a) through (g).
"Permitted Liens" shall mean Liens described in Section 9.04(a)
through (j).
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) the Borrower or a Subsidiary
of the Borrower or an ERISA Affiliate.
"Pricing Grid" shall mean the pricing grid set forth on Annex III
attached hereto.
"Prime Lending Rate" shall mean the rate which the Administrative
Agent 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. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Rating Agencies" shall mean each of Moody's and S&P.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 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" shall have the meaning provided in Section 13.16.
"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 T" shall mean Regulation T 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.
-49-
55
"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.
"Regulation X" shall mean Regulation X 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.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section
1.13.
"Required Lenders" shall mean Non-Defaulting Lenders whose
outstanding Commitments (or, if after the Total Commitment has been terminated,
outstanding Loans and Percentage of Letter of Credit Outstandings) constitute
greater than 50% of the aggregate Commitments of Non-Defaulting Lenders (or, if
after the Total Commitment has been terminated, the total outstanding Loans of
Non-Defaulting Lenders plus the aggregate Percentages of all Non-Defaulting
Lenders of the Letter of Credit Outstandings at such time).
"Restricted Payments" shall mean any Dividend or Investment.
"S&P" shall mean Standard & Poor's Ratings Group and its successors.
"S&P Credit Rating" shall mean the rating level (it being understood
that a rating level shall include alphabetical (including case distinctions),
numerical and (+) and (-) modifiers) assigned by S&P to the senior unsecured
long-term debt of the Borrower.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Specified Default" shall mean any Default pursuant to Sections
10.01 and/or 10.05 and any Event of Default.
"Standby Letter of Credit" shall have the meaning provided in
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 (i) 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 (ii) any partnership, association, joint
venture, a limited liability company or other entity in which such Person
directly or indirectly through Subsidiaries, has
-50-
56
more than a 50% equity interest at the time. Unless otherwise expressly
provided, all references herein to "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Total Capitalization" shall mean, at any time, the sum of
Consolidated Funded Indebtedness and Consolidated Net Worth at such time.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Lenders at such time, which Total Commitment on the
Effective Date shall be $200,000,000.
"Total Unutilized Commitment" shall mean, at any time, (i) the Total
Commitment at such time less (ii) 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" shall have the meaning provided in 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.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Utilization Fee" shall have the meaning provided in Section
3.01(e).
"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" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than directors qualifying shares)
is at the time owned directly or indirectly by such Person and/or one or more
Wholly Owned Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or
-51-
57
more Wholly Owned Subsidiaries of such Person directly or indirectly has a 100%
equity interest at such time.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex or facsimile transmission.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Lenders hereby designate CBK as
Administrative Agent to act as specified herein and in the other Credit
Documents. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
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 (including by appointing one or more
of its banking Affiliates to act as Administrative Agent hereunder).
12.02 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and the other Credit Documents. 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 Lender 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.
12.03 Lack of Reliance on the Administrative Agent. Independently
and without reliance upon the Administrative Agent, each Lender and the holder
of each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its 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
(ii) its own appraisal of the creditworthiness of the Borrower and its
Subsidiaries and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender 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 Administrative Agent shall not be responsible to any Lender 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
-52-
58
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 the
Borrower and its Subsidiaries or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrower and its Subsidiaries or the existence or possible
existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders 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 Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Lender 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 Lenders.
12.05 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, including, without limitation, counsel to the Borrower and its
Subsidiaries, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice and statements of legal counsel.
12.06 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Lenders, 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 Administrative Agent in
performing its 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 that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence, willful misconduct or unlawful act.
12.07 The Administrative Agent in Its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders," "Required Lenders," "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Borrower or its Subsidiaries or any
Affiliate thereof as if it were not
-53-
59
performing the duties specified herein, and may accept fees and other
consideration from the Borrower or any of its Subsidiaries for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
12.08 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.
12.09 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 the Borrower and the Lenders. 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 Lenders shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the 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 the 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 Lenders 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 Lenders 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 Lenders appoint a
successor Administrative Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower agrees to (and to cause
each other Credit Party, in respect of the Credit Document to which it is a
party, 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 White & Case LLP)
and of the Administrative Agent and, after the occurrence and during the
continuance of an Event of Default, each of the Lenders in connection with the
enforcement of the Credit Documents and the documents and instruments
-54-
60
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
Lenders), provided that to the extent it is feasible and a conflict of interest
does not exist in the reasonable discretion of the Administrative Agent, the
Lenders and their counsel, the Lenders shall use the same counsel in connection
with the foregoing; (ii) pay and hold each of the Lenders 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 Lenders 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 such Lender) to pay such
taxes; and (iii) indemnify each Lender (including in its capacity as the
Administrative Agent or 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 or expenses 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 Lender 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 the Borrower or any other Person, 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, willful misconduct, unlawful act or material
breach of the terms of this Agreement 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,
vessel or other facility or location at any time owned or operated by the
Borrower or any of its Subsidiaries, the generation, storage, transportation or
disposal of Hazardous Materials at any Real Property, offshore drilling rig,
vessel or other facility or location at any time owned or operated by the
Borrower or any of its Subsidiaries, the non-compliance of any Real Property,
offshore drilling rig, vessel or other facility or location at any time owned or
operated by the Borrower or any of its Subsidiaries with federal, state and
local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any such Real Property, offshore drilling rig, vessel
or other facility or location, or any Environmental Claim asserted against the
Borrower, any of its Subsidiaries, or any Real Property, offshore drilling rig,
vessel or other facility or location at any time owned or operated by the
Borrower or any of its Subsidiaries, 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 losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence, willful
misconduct, unlawful act of the Person to be indemnified. To the extent that the
undertaking to indemnify, pay or hold harmless the Administrative Agent or any
Lender set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrowers shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 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 then exists, each Lender is hereby
authorized at any time or from time to time, without
-55-
61
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, 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 Lender (including without
limitation by branches and agencies of such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
Obligations and liabilities of the Borrower to such Lender under this Agreement
or under any of the other Credit Documents, including, without limitation, all
interests in Obligations of the Borrower purchased by such Lender pursuant to
Section 13.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Lender shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. Without limiting the foregoing, each Lender agrees to use reasonable
efforts to notify the Borrower of any exercise of such Lender's right of setoff
granted hereby.
13.03 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 the Borrower or its Subsidiaries, at the address specified
opposite its signature below or in the other relevant Credit Documents, as the
case may be; if to any Lender, at its address specified for such Lender on Annex
II; 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 the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the 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 the Letter of
Credit Issuer in good faith to be from an Authorized Officer of the Borrower. In
each such case, the Borrower hereby waives the right to dispute the
Administrative Agent's or the Letter of Credit Issuer's record of the terms of
such telephonic notice.
13.04 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 that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Lenders. Each Lender may at any time grant participations in any
of its rights hereunder or under any of the Notes to another financial
institution, provided 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 Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 1.10 and 4.04 of this Agreement to the extent that such Lender would be
entitled to such benefits if the participation had not been entered into or
sold, and, provided further, that no Lender shall transfer, grant or assign any
participation under which the participant shall have rights to approve any
amendment to or
-56-
62
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 the Borrower of any of its rights and obligations
under this Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may assign all or
a portion of its outstanding Commitment and its rights and obligations hereunder
to its Affiliate or to another Lender, and (y) with the consent of the
Administrative Agent, the Letter of Credit Issuer and the Borrower (which
consent shall not be unreasonably withheld), any Lender may assign all or a
portion of its outstanding Commitment and its rights and obligations hereunder
to one or more Eligible Transferees. No assignment pursuant to the immediately
preceding sentence shall, to the extent such assignment is made to an
institution other than one or more Lenders hereunder, be in an aggregate amount
less than $10,000,000 unless the entire Commitment of the assigning Lender is so
assigned. If any Lender 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 Lender shall thereafter refer to such Lender 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 Lender. Each assignment pursuant to this Section 13.04(b) shall
be effected by the assigning Lender and the assignee Lender 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 Lender
hereunder, either the assigning or the assignee Lender shall pay to the
Administrative Agent a nonrefundable assignment fee of $3,500 and (y) to a
Lender, either the assigning or assignee Lender shall pay to Administrative
Agent a nonrefundable assignment fee of $1,500, and at the time of any
assignment pursuant to this Section 13.04(b), (i) Annex I shall be deemed to be
amended to reflect the Commitment of the respective assignee (which shall result
in a direct reduction to the Commitment of the assigning Lender) and of the
other Lenders, and (ii) if any such assignment occurs after the Effective Date,
if requested by the assigning Lender and the assignee Lender, the Borrower will
issue new Notes to the respective assignee and to the assigning Lender in
conformity with the requirements of Section 1.05. Each Lender and the 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 Lender
from pledging its Notes or Loans to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 13.04, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file
-57-
63
a registration statement with the SEC or to qualify the Loans under the "Blue
Sky" laws of any State.
(d) Each Lender initially party to this Agreement hereby represents,
and each Person that became a Lender pursuant to an assignment permitted by this
Section 13 will, upon its becoming party to this Agreement, represent that 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 it will make or acquire Loans for its own account in the
ordinary course of such business, provided 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 Lender shall at all times be within its
exclusive control.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower or any of its Subsidiaries and the Administrative Agent or
any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other 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 Lender would otherwise have. No
notice to or demand on the Borrower or any of its Subsidiaries in any case shall
entitle the Borrower or any of its Subsidiaries 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 Lenders to any other or further action in any
circumstances without notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower or
any of its Subsidiaries in respect of any Obligations of the Borrower or any of
its Subsidiaries hereunder, it shall distribute such payment to the Lenders
(other than any Lender 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.
(b) Each of the Lenders 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 Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender bears to the total
of such Obligation then owed and due to all of the Lenders immediately prior to
such receipt, then such Lender receiving such excess payment shall purchase for
cash without recourse or warranty from the other Lenders an interest in the
Obligations of the Borrower or any of its Subsidiaries, respectively, to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount, provided that if all or any portion of such excess
amount is thereafter recovered from such Lender, such purchase
-58-
64
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 13.06(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 Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders), provided that (x) except all computations
determining compliance with Section 9, 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 December 31,
2000 historical financial statements of the Borrower delivered to the Lenders
pursuant to Section 7.10(b), and (y) if at any time the computations determining
compliance with Section 9 utilize accounting principles different from those
utilized in such financial statements furnished to the Lenders, such financial
statements shall be accompanied by reconciliation worksheets.
(b) All computations of interest relating to Eurodollar Loans shall
be made on the actual number of days elapsed over a year of 360 days. All other
computations of interest hereunder and Fees shall be made on the actual number
of days elapsed over a year of 365 days.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (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, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS. THE 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 THE BORROWER LOCATED OUTSIDE NEW YORK CITY AND BY HAND
DELIVERY TO THE BORROWER LOCATED WITHIN NEW YORK CITY, AT ITS ADDRESS FOR
NOTICES PURSUANT TO SECTION 13.03, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE
AGENT, ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH 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
-59-
65
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.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, 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 the Borrower and the
Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which (i) the Borrower and each of the Lenders
shall have signed a copy hereof (whether the same or different copies) and shall
have delivered the same to the Administrative Agent at the Payment Office of the
Administrative Agent or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it and (ii) the Borrower shall have fully complied
with each of the conditions set forth in Section 5.
13.11 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.
13.12 Amendment or Waiver. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Lenders, provided that no
such change, waiver, discharge or termination shall, without the consent of each
Lender (other than a Defaulting Lender) affected thereby, (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 of any post-default
increase in interest rates) or Fees thereon, or reduce the principal amount
thereof, (ii) increase the Commitment of any Lender 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 shall not constitute a
change in the terms of any Commitment of any Lender), (iii) amend, modify or
waive any provision of this Section, (iv) reduce the percentage specified in the
definition of Required Lenders or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement. No
provision of Sections 2 or 12, or any other provisions relating to the Letter of
Credit Issuer or the Administrative Agent may be modified without the consent of
the 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
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the
-60-
66
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right to replace each such
non-consenting Lender or Lenders (so long as all non-consenting Lenders are so
replaced) with one or more Replacement Lenders pursuant to Section 1.13, so long
as at the time of such replacement, each such Replacement Lender consents to the
proposed change, waiver, discharge or termination, provided that the Borrower
shall not have the right to replace a Lender solely as a result of the exercise
of such Lender's rights (and the withholding of any required consent by such
Lender) pursuant to Section 13.12(a)(ii).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 4.04, 12.07 or 13.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or Affiliate of
such Lender, provided that the 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 Lender prior to such transfer.
13.15 Confidentiality. Subject to Section 13.04, the Lenders shall
hold all non-public information obtained pursuant to the requirements of this
Agreement in accordance with its customary procedure for handling confidential
information of this nature and in accordance with safe and sound banking
practices 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 in writing to be bound by the provisions of this Section 13.15) or as
required or requested by any governmental agency or representative thereof or
pursuant to legal process, provided that, unless specifically prohibited by
applicable law or court order, each Lender shall notify the 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 Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information, and provided further that
in no event shall any Lender be obligated or required to return any materials
furnished by the Borrower or any Subsidiary.
13.16 Registry. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.16, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender 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
-61-
67
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(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 Lender 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 Lender and/or the new Lender. * * *
-62-
68
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: NOBLE DRILLING CORPORATION
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000 By /s/ Xxxx X. Xxxxxxx
Attn.: Xxxx Xxx ----------------------------------
Telephone: (000) 000-0000 Title: Senior Vice President &
Facsimile: (000) 000-0000 Chief Financial Officer
CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH,
Individually and as Administrative
Agent
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Title: Senior Vice President
By: /s/ Hans Chr. Kjelsrud
-------------------------------------
Title: Senior Vice President
XXXXX FARGO BANK TEXAS,
NATIONAL ASSOCIATION,
Individually and as Documentation
Agent
By: /s/ Xxxx X. Xxxx
-------------------------------------
Title: Vice President
SUNTRUST BANK,
Individually and as Documentation
Agent
By: /s/ Xxxx X. Xxxxxx, Xx.
-------------------------------------
Title: Managing Director
69
THE BANK OF TOKYO-MITSUBISHI, LTD.,
Individually and as Syndication
Agent
By: /s/ X. Xxxxxxxxx
-------------------------------------
Title: Vice President & Manager
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, Individually and
as Syndication Agent
By: /s/ Xxxx Xxxxxx
-------------------------------------
Title: Associate Director
By: /s/ Xxxxxx X. Xxxxx III
-------------------------------------
Title: Associate Director
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Title: Senior Vice President &
Manager
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Title: Banking Officer
70
ANNEX I
COMMITMENTS
Lender Commitment
Christiania Bank og Kreditkasse ASA, $ 40,000,000
New York Branch
Xxxxx Fargo Bank Texas, $ 30,000,000
National Association
SunTrust Bank $ 30,000,000
The Bank of Tokyo-Mitsubishi, Ltd. $ 30,000,000
Westdeutsche Landesbank Girozentrale, $ 30,000,000
New York Branch
The Fuji Bank, Limited $ 20,000,000
Southwest Bank of Texas, N.A. $ 20,000,000
TOTAL $200,000,000
71
ANNEX II
LENDER ADDRESSES
CHRISTIANIA BANK OG 00 Xxxx 00xx Xxxxxx
XXXXXXXXXXX XXX, XXX XXXX BRANCH 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Administrative Agent Attention: Mr. Hans Chr. Kjelsrud
Tel: 000-000-0000
Fax: 000-000-0000
XXXXX XXXXX XXXX XXXXX, XXXXXXXX 0000 Xxxxxxxx, 0xx Xxxxx
ASSOCIATION Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxx
Documentation Agent Tel: 000-000-0000
Fax: 000-000-0000
SUNTRUST BANK 000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Documentation Agent Attention: Xx. Xxxxxx X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
THE BANK OF TOKYO-MITSUBISHI, LTD. 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Syndication Agent Attention: Xx. Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
WESTDEUTSCHE LANDESBANK GIROZENTRALE, 5555 San Xxxxxx, 00xx Xxxxx
XXX XXXX XXXXXX Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Syndication Agent Tel: 000-000-0000
Fax: 000-000-0000
THE FUJI BANK, LIMITED 0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
XXXXXXXXX XXXX XX XXXXX, X.X. 0 Xxxx Xxx Xxxx
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
72
ANNEX III
PRICING GRID
Applicable Applicable
Applicable Facility Fee Utilization Fee
Credit Rating Eurodollar Margin Percentage Percentage
------------- ----------------- ---------- ----------
Category 1 0.180% 0.075% 0.075%
Category 2 0.220% 0.085% 0.100%
Category 3 0.300% 0.100% 0.100%
Category 4 0.500% 0.125% 0.125%
Category 5 0.575% 0.150% 0.150%
Category 6 0.700% 0.200% 0.175%
73
ANNEX IV
OUTSTANDING LETTERS OF CREDIT
OPENING DATE ADVISING/ISSUING BANK BENEFICIARY AMOUNT PURPOSE EXPIRY DATE CBK L/C#
10/24/00 Standard Chartered Grindlays Bank M/S Neptune Exploration INR12,02,69,734 Bid Bond 06/30/02 30499
New Delhi, India and Industries Limited
$2,600,000.00
-----------------------------------------------------------------------------------------------------------------------------------
03/16/01 ABN AMRO, Abu Dhabi National Drilling Company $806,020.00 Bid Bond 05/15/02 30523
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
74
ANNEX V
EXISTING INDEBTEDNESS
Debtor Description Amount
------ ----------- ------
Noble Drilling Corporation 6.95% Senior Notes due 2009 $149,912,000
Noble Drilling Corporation 7.50% Senior Notes due 2019 $250,000,000
Noble Drilling (Xxxx Xxxxx) Ltd. Fixed Rate Senior Secured Notes $ 97,062,084
Noble Drilling (Xxx Xxxxxxxx) Inc. Fixed Rate Senior Secured Notes $105,737,415
Noble Drilling (Xxxx Xxxxxx) Inc. Senior Secured Notes $ 69,880,256
Arktik Drilling Limited, Inc. Note $ 7,900,000
75
ANNEX VI
EXISTING LIENS
First preferred ship mortgage on the Noble Muravlenko, securing $7.9 million
loan by minority equity owner of Arktik Drilling Limited, Inc. ("Arktik") to
Arktik.
