AMENDMENT NO. 2 TO LOAN, SECURITY AND GUARANTY AGREEMENT
EXHIBIT 4.1
AMENDMENT NO. 2 TO LOAN, SECURITY AND GUARANTY AGREEMENT
This AMENDMENT NO. 2 TO LOAN, SECURITY AND GUARANTY AGREEMENT (this “Amendment”), dated as of June 23, 2023, is entered into by Helix Energy Solutions Group, Inc., a Minnesota corporation (“Helix”), Helix Well Ops Inc., a Texas corporation (“Well Ops”), Helix Robotics Solutions, Inc., a Texas corporation (“Robotics”), Deepwater Abandonment Alternatives, Inc., a Texas corporation (“Deepwater”), ALLIANCE OFFSHORE, L.L.C., a Louisiana limited liability company (“Alliance Offshore”), TRITON DIVING SERVICES, LLC, a Louisiana limited liability company (“Triton”), ALLIANCE ENERGY SERVICES, LLC, a Louisiana limited liability company (“Alliance Energy” and together with Helix, Well Ops, Robotics, Deepwater, Alliance Offshore and Triton, each a “U.S. Borrower” and collectively, “U.S. Borrowers”), Helix Well Ops (U.K.) Limited, a company incorporated in Scotland with company number SC231293 and having its registered office address at 00 Xxxxx’x Xxxx, Xxxxxxxx, XX00 0XX (“Well Ops U.K.”), Helix Robotics Solutions Limited, a company incorporated in Scotland with number SC210524 and having its registered office address at 00 Xxxxx’x Xxxx, Xxxxxxxx, XX00 0XX (“Robotics U.K.”, and together with Well Ops U.K., each a “U.K. Borrower” and collectively, “U.K. Borrowers”; the U.K. Borrowers and the U.S. Borrowers are collectively, the “Borrowers”), the guarantors party hereto (the “Guarantors”, and together with the Borrowers, the “Obligors”), the lenders party hereto (the “Lenders”), and Bank of America, N.A., as agent and as security trustee for the Lenders (in such capacity, “Agent”).
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agent are parties to that certain Loan, Security and Guaranty Agreement dated as of September 30, 2021 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Loan Agreement”, and the Loan Agreement as amended hereby, the “Amended Loan Agreement”);
WHEREAS, the Borrowers have requested that the Lenders increase the U.S. Commitment from $65,000,000 to $85,000,000 pursuant to Section 2.1.7 of the Loan Agreement and make certain other amendments to the Loan Agreement; and
WHEREAS, the Agent and the Lenders are willing to provide such increase and amend the Loan Agreement on the terms and conditions set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
underlined text) as set forth in the pages of the Amended Loan Agreement attached hereto as Exhibit A, and any such term or provision of the Loan Agreement which is different from that set forth in the Amended Loan Agreement shall be replaced and superseded in all respects by the terms and provisions of the Amended Loan Agreement.
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to assign or pledge to Agent, for the benefit of it and the Lenders, or to grant to Agent, for the benefit of it and the Lenders, a security interest in or Lien on any Collateral as security for the Obligations of the Obligors from time to time existing in respect of the Amended Loan Agreement and the other Loan Documents, such pledge, assignment and/or grant of the security interest or Lien is not discharged or otherwise affected by the amendment hereunder or the other provisions of this Amendment (other than as expressly provided herein) and shall remain in full force and effect and is hereby ratified and confirmed in all respects and shall continue to secure and extend to the Obligations as increased hereby, (d) confirms that its guaranty of the Obligations contained in the Loan Agreement and as increased hereby is not discharged or otherwise affected by the amendments hereunder or the other provisions of this Amendment (other than as expressly provided herein) and shall continue in full force and effect and (e) confirms the Obligations, including for the purposes of each Loan Document and the guaranty contained in the Loan Agreement, shall (to the extent applicable) extend to the relevant Obligations (both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity) of each Obligor under the Amended Loan Agreement and the other Loan Documents. This Amendment does not discharge or otherwise affect any of the obligations of the Obligors, other than as expressly provided herein, including the Obligors’ obligations to repay the Loans in accordance with the terms of the Amended Loan Agreement or the obligations of the Obligors under any Loan Document to which they are a party, all of which obligations, as amended hereby, shall remain in full force and effect and are hereby ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or any Lender under the Amended Loan Agreement or any other Loan Document nor constitute a waiver of any provision of the Amended Loan Agreement or any other Loan Document.
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Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “Releasors”) does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge Agent and the Lenders, together with their respective Affiliates, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “Released Parties”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys' fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Second Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Loan Agreement or any other Loan Document, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral (each of the foregoing, a “Claim”). Each Obligor represents and warrants, as of the Second Amendment Effective Date, that it has no knowledge of any Claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a Claim by any Releasor against any Released Party which would not be released hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first page hereof.
OBLIGORS:
Helix Energy Solutions Group, Inc. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Executive Vice President and Chief Financial Officer |
HELIX WELL OPS INC. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
HELIX ROBOTICS SOLUTIONS, INC. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
DEEPWATER ABANDONMENT ALTERNATIVES, INC. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Alliance Offshore, L.L.C.
By: | Alliance Maritime Holdings, LLC, its sole member |
By: | Alliance-Triton GOM Holdings LLC, its sole member |
By: | Helix Alliance Decom, LLC, its sole member |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Triton Diving Services, LLC
By: | Xxxxxxx Xxxxx Holdings, LLC, its sole member |
By: | Alliance Special Ventures Holdings, LLC, its sole member |
By: | Alliance-Triton GOM Holdings LLC, its sole member |
By: | Helix Alliance Decom, LLC, its sole member |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
Alliance Energy Services, LLC
By: | Alliance Industry Holdings, LLC, its sole member |
By: | Alliance-Triton GOM Holdings LLC, its sole member |
By: | Helix Alliance Decom, LLC, its sole member |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
HELIX WELL OPS (U.K.) LIMITED | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx Xxxxxxx | |
Title: | Director | |
HELIX ROBOTICS SOLUTIONS LIMITED | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx Xxxxxxx | |
Title: | Director | |
HELIX ROBOTICS SOLUTIONS INTERNATIONAL CORP. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
| |
HELIX SUBSEA CONSTRUCTION, INC. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
HELIX Alliance Decom, LLC | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
ALLIANCE-TRITON GOM HOLDINGS, LLC
By: | Helix Alliance Decom, LLC, its sole member |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
ALLIANCE MARITIME HOLDINGS, LLC
XXXXXXX XXXXX HOLDINGS, LLC
ALLIANCE INDUSTRY HOLDINGS, LLC
By: | Alliance-Triton GOM Holdings LLC, its sole member |
By: | Helix Alliance Decom, LLC, its sole member |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Alliance Special Ventures Holdings, LLC
By: | Xxxxxxx Xxxxx Holdings, LLC, its sole member |
By: | Alliance-Triton GOM Holdings LLC, its sole member |
By: | Helix Alliance Decom, LLC, its sole member |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
HELIX Q5000 HOLDINGS LLC | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | President and Treasurer |
| |
HELIX OFFSHORE LTD. | |
By: | /s/ Xxxx Xxxxxxxxx |
Name: | Xxxx Xxxxxxxxx |
Title: | Director |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
AGENT AND LENDERS: | |
BANK OF AMERICA, N.A., as Agent and X.X. Xxxxxx | |
By: | /s/ Xxxxxxxxx Xxxxx |
Name: | Xxxxxxxxx Xxxxx |
Title: | Vice President |
BANK OF AMERICA, N.A. (acting through its London Branch), as a U.K. Lender | |
By: | /s/ Xxxxxxxxx Xxxxx |
Name: | Xxxxxxxxx Xxxxx |
Title: | Vice President |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a U.S. Lender | |
By: | /s/ Xxxxxxx Xxxxxxxx |
Name: | Xxxxxxx Xxxxxxxx |
Title: | Director |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION (London Branch), as a U.K. Lender | |
/s/ Xxxxxxxx Del Xxxxx | |
Name: | Xxxxxxxx Del Xxxxx |
Title: | Authorized Signatory |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
ZIONS BANCORPORATION, N.A. dba Amegy Bank, as a U.S. Lender | |
By: | /s/ X. Xxxxx Xxxxxxx |
Name: | X. Xxxxx Xxxxxxx |
Title: | Executive Vice President |
Signature Page to Amendment No. 2
to Loan, Security and Guaranty Agreement
to
Loan, Security and Guaranty Agreement
COMMITMENTS OF LENDERS
Lender | U.K. Commitment | U.S. Commitment | |
Bank of America, N.A. | $0 | $34,327,000 | N/A |
Bank of America, N.A., London Branch | $17,500,000 | $0 | N/A |
Xxxxx Fargo Bank, National Association | $0 | $34,327,000 | N/A |
Xxxxx Fargo Bank, National Association (London Branch) | $17,500,000 | $0 | N/A |
Zions Bancorporation, N.A. dba Amegy Bank | $0 | $16,346,000 | N/A |
Total:$120,000,000 | $35,000,000 | $85,000,000 | |
Exhibit A
Amended LOAN AGREEMENT
LOAN, SECURITY AND GUARANTY AGREEMENT
Dated as of September 30, 2021
HELIX ENERGY SOLUTIONS GROUP, INC.,
HELIX WELL OPS INC.,
HELIX ROBOTICS SOLUTIONS, INC.,
DEEPWATER ABANDONMENT ALTERNATIVES, INC.
HELIX WELL OPS (U.K.) LIMITED,
HELIX ROBOTICS SOLUTIONS LIMITED,
as Lead Arranger and Bookrunner
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arranger and Joint Bookrunner
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LIST OF EXHIBITS AND SCHEDULES | |
EXHIBIT A | Assignment |
EXHIBIT B EXHIBIT C | Compliance Certificate Secured Bank Product Notice |
| |
SCHEDULE 1.1(a) | Commitments of Lenders |
SCHEDULE 1.1(b) | Existing Letters of Credit |
SCHEDULE 8.3 | Deposit Accounts and Securities Accounts |
SCHEDULE 8.4.1 | Business Locations |
SCHEDULE 9.1.4 | Names and Capital Structure |
SCHEDULE 9.1.14 | Environmental Matters |
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SCHEDULE 9.1.15 | Restrictive Agreements |
SCHEDULE 9.1.16 | Litigation |
SCHEDULE 9.1.18 | Pension Plans |
SCHEDULE 9.1.20 | Labor Contracts |
SCHEDULE 10.1.13 | Post-Closing Maters |
SCHEDULE 10.2.1 | Existing Debt |
SCHEDULE 10.2.2 | Existing Liens |
SCHEDULE 10.2.4 | Existing Investments |
SCHEDULE 10.2.14 | Existing Affiliate Transactions |
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LOAN, SECURITY AND GUARANTY AGREEMENT
THIS LOAN, SECURITY AND GUARANTY AGREEMENT is dated as of September 30, 2021 (as amended, modified or supplemented from time to time, this “Agreement”), among HELIX ENERGY SOLUTIONS GROUP, INC., a Minnesota corporation (“Helix”), HELIX WELL OPS INC., a Texas corporation (“Well Ops”), HELIX ROBOTICS SOLUTIONS, INC., a Texas corporation (“Robotics”), DEEPWATER ABANDONMENT ALTERNATIVES, INC., a Texas corporation (“Deepwater”, and together with Helix, Well Ops, and Robotics, each an “Initial U.S. Borrower” and collectively, “Initial U.S. Borrowers”), HELIX WELL OPS (U.K.) LIMITED, a company incorporated in Scotland with company number SC231293 and having its registered office address at 00 Xxxxx’x Xxxx, Xxxxxxxx, XX00 0XX (“Well Ops U.K.”), HELIX ROBOTICS SOLUTIONS LIMITED, a company incorporated in Scotland with number SC210524 and having its registered office address at 00 Xxxxx’x Xxxx, Xxxxxxxx, XX00 0XX (“Robotics U.K.”, and together with Well Ops U.K., each an “Initial U.K. Borrower” and collectively, “Initial U.K. Borrowers”), the financial institutions party to this Agreement from time to time as Lenders, and BANK OF AMERICA, N.A., a national banking association (“Bank of America”), as agent and as security trustee for the Lenders (in such capacity, “Agent”).
Borrowers have requested that Xxxxxxx provide a credit facility to Borrowers to finance their mutual and collective business enterprise. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
. As used herein, the following terms have the meanings set forth below:
2022 Notes: Helix’s 4.25% Convertible Senior Notes due May 2022 in a remaining principal amount of $35 million issued pursuant to the 2022 Notes Indenture.
2022 Notes Indenture: the Indenture dated as of November 1, 2016 between Helix and The Bank of New York Mellon Trust Company, N.A., as amended and supplemented by that certain first supplemental indenture, dated as of November 1, 2016.
2023 Notes: Helix’s 4.125% Convertible Senior Notes due September 2023 in a remaining principal amount of $30 million issued pursuant to the 2023 Notes Indenture.
2023 Notes Indenture: the Indenture dated as of November 1, 2016 between Helix and The Bank of New York Mellon Trust Company, N.A., as amended and supplemented by that certain second supplemental indenture, dated as of March 20, 2018.
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2026 Notes: Helix’s 6.75% Convertible Senior Notes due February 2026 in the original principal amount of $200 million issued pursuant to the 2026 Notes Indenture.
2026 Notes Indenture: the Indenture dated as of August 14, 2020 between Helix and The Bank of New York Mellon Trust Company, N.A., as amended and supplemented by that certain first supplemental indenture, dated as of August 14, 2020.
Account: as defined in the UCC or other Applicable Law, including (a) all rights to payment for goods sold or leased, or for services rendered and (b) all amounts payable under any master service agreement or customer contract for the provision of services through the operation of a Vessel or other equipment (including remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers).
Acquisition: a transaction or series of transactions resulting in (a) acquisition of a business, division or substantially all assets of a Person; (b) record or beneficial ownership of 50% or more of the Equity Interests of a Person; (c) merger, consolidation or combination of an Obligor or Subsidiary with another Person; (d) the acquisition of a Vessel (other than by way of lease or charter); or (e) the acquisition by Deepwater of oil and gas reserves and related assets.
Affected Financial Institution: any EEA Financial Institution or U.K. Financial Institution.
Affiliate: with respect to a specified Person, any other Person that directly, or indirectly through intermediaries, Controls, is Controlled by or is under common Control with the specified Person.
Agent: as defined in the introductory paragraph hereof.
Agent Indemnitees: Agent and its officers, directors, employees, Affiliates and Agent Professionals.
Agent Professionals: attorneys, accountants, appraisers, auditors, advisors, consultants, agents, service providers, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals, experts and representatives retained or used by Agent.
Agreed Currency: Dollars and Sterling.
Agreement: as defined in the introductory paragraph hereof.
Alliance Companies: collectively, (a) Helix Alliance Decom, LLC, a Delaware limited liability company, the purchaser under the Alliance Purchase Agreement, (b) each of Alliance Maritime Holdings, LLC, a Louisiana limited liability company, Xxxxxxx Xxxxx Holdings, LLC, a Louisiana limited liability company, Heavy Lift Holdings, LLC, a Louisiana limited liability company, Whitney Maritime Holdings, LLC, a Louisiana limited liability company, and Alliance Vessel Leasing, LLC, a Louisiana limited liability company, and their respective Subsidiaries on the date that the Subject Acquisition closes, and (c) the Delaware limited liability company formed by the “Seller” under the Alliance Purchase Agreement as a holding company to facilitate the sale of the entities described in the foregoing clause (b).
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Alliance Purchase Agreement: that certain Equity Purchase Agreement, dated as of May 16, 2022, by and among Helix Alliance Decom, LLC, a Delaware limited liability company, as purchaser, Xxxxxxx X. Xxxxxxxx, an individual resident of the State of Louisiana, as seller, and solely for purposes of Section 1.05(d) and Section 6.14 therein, Helix, as the same may be amended, supplemented or otherwise modified from time to time, subject to Section 10.2.7.
Allocable Amount: as defined in Section 5.10.3.
Alternative Currency: Sterling.
Alternative Currency Conforming Changes: with respect to the use, administration of or any conventions associated with any Relevant Rate (other than SOFR) or any proposed Alternative Currency Successor Rate for an Alternative Currency, any conforming changes to the definitions of “U.K. Base Rate”, “XXXXX”, “XXXXX Xxxxxxxxxx”, “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Agent in a manner substantially consistent with market practice for such Alternative Currency (or, if Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for such Alternative Currency exists, in such other manner of administration as Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
Alternative Currency Scheduled Unavailability Date: as defined in Section 3.6.3.
Alternative Currency Successor Rate: as defined in Section 3.6.3.
Anti-Corruption Law: any Applicable Law relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, U.K. Bribery Act 2010 and Patriot Act.
Anti-Terrorism Law: any law relating to terrorism or money laundering, or any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including the Patriot Act.
Applicable Law: all laws, rules, regulations and governmental guidelines applicable to the Person or matter in question, including statutory law, common law and equitable principles, as well as provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.
Applicable Lenders: (a) with respect to U.K. Borrowers, the U.K. Xxxxxxx, and (b) with respect to U.S. Borrowers, the U.S. Lenders.
Applicable Margin: the margin set forth below, as determined by the average daily Global Availability as a percentage of the Global Borrowing Base for the last Fiscal Quarter:
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Level | Average Daily Global Availability as a Percentage of the Global Borrowing Base | U.S. Base Rate Loans | Term SOFR and U.K. Base Rate Loans |
I | > 66% | 0.50% | 1.50% |
II | > 33% and ≤ 66% | 0.75% | 1.75% |
III | ≤ 33% | 1.00% | 2.00% |
| | | |
Until December 31, 2021 margins shall be determined as if Level I were applicable. Thereafter, margins shall be subject to increase or decrease by Agent on the first day of the calendar month following each Fiscal Quarter end. If Agent is unable to calculate average daily Global Availability for a Fiscal Quarter due to Borrowers’ failure to deliver any Borrowing Base Report when required hereunder, then, at the option of Agent or Required Lenders, margins shall be determined as if Level III were applicable until the first day of the calendar month following its receipt.
Approved Fund: any entity owned or Controlled by a Lender or Affiliate of a Lender, if such entity is engaged in making or investing in commercial loans in its ordinary course of activities.
Assignment: an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit A or otherwise reasonably satisfactory to Agent.
Availability: U.K. Availability or U.S. Availability, as the context requires.
Availability Reserve: the U.K. Availability Reserve or the U.S. Availability Reserve, as the context requires.
Bail-In Action: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation: with respect to (a) any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, or (b) the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bank of America: as defined in the introductory paragraph hereof.
Bank of America Indemnitees: Bank of America and its officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.
Bank Product: any of the following products or services extended to an Obligor or Affiliate of an Obligor by a Lender or any of its Affiliates: (a) Cash Management Services; (b) Swaps; (c)
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commercial credit card and merchant card services; and (d) other banking products or services, other than Letters of Credit.
Bankruptcy Code: Title 11 of the United States Code.
Base Rate: the U.K. Base Rate and/or the U.S. Base Rate, as the context requires.
Base Rate Loan: the U.K. Base Rate Loans and/or U.S. Base Rate Loans, as the context requires.
Beneficial Ownership Certification: a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, in form and substance reasonably satisfactory to Agent and each Lender.
Beneficial Ownership Regulation: 31 C.F.R. §1010.230
Benefit Plan: any (a) employee benefit plan (as defined in ERISA) subject to Title I of ERISA, (b) plan (as defined in and subject to Section 4975 of the Code), or (c) Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such employee benefit plan or plan.
Bloomberg: Bloomberg Index Services Limited.
Borrowed Money: with respect to any Obligor or Subsidiary, without duplication, (a) any obligation that (i) arises from the lending of money by any Person to such Obligor or Subsidiary, (ii) is evidenced by notes, loan agreements, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid, or (iv) was issued or assumed as full or partial payment for Property or services (other than (w) trade payables and accrued expenses in the Ordinary Course of Business, (x) earn out obligations and deferred compensation until such obligations become a liability on the balance sheet of such Person in accordance with GAAP, (y) agreements providing for indemnification, purchase price adjustments or similar obligations in connection with acquisitions and dispositions, and (z) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller); (b) Capital Leases; (c) letter of credit reimbursement obligations; and (d) guaranties of any of the foregoing owing by another Person, but, in each case, specifically excluding to the extent otherwise applicable (1) Debt in the form of performance, warranty and decommissioning bonds, and (2) Decommissioning Liabilities.
Borrower Agent: the U.K Borrower Agent and/or the U.S. Borrower Agent, as the context requires.
Borrower Group: U.K. Borrowers or U.S. Borrowers, as the context requires.
Borrower Group Commitment: with respect to the Commitment of (a) a U.K. Lender, its U.K. Commitment and (b) a U.S. Lender, its U.S. Commitment. The term “Borrower Group Commitments” means (i) the Borrower Group Commitment of all U.K. Lenders or (ii) the Borrower Group Commitment of all U.S. Lenders, as the context requires. To the extent any
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Lender has more than one Borrower Group Commitment, each such Commitment shall be considered as a separate Commitment for purposes of this definition.
Borrower Materials: Borrowing Base Reports, Compliance Certificates, Notices of Borrowing, Notices of Conversion/Continuation, and other information, reports, financial statements and materials delivered by Obligors under the Loan Documents, as well as Reports and other information provided by Agent to Lenders in connection with the credit facility established by this Agreement.
Borrowers: the U.S. Borrowers and the U.K. Borrowers.
Borrowing: Loans made or converted together on the same day, with the same interest option and, if applicable, Interest Period.
Borrowing Base: the U.K. Borrowing Base or the U.S. Borrowing Base, as the context requires.
Borrowing Base Report: a report with respect to the U.S. Borrowing Base, the U.K. Borrowing Base and the Global Borrowing Base, each determined separately therein and in such form as is reasonably satisfactory to Agent, by which Borrowers certify the calculation of their respective Borrowing Base and the Global Borrowing Base.
Borrowing Base Reporting Trigger Period: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Global Availability is less than the greater of $12,500,00015,000,000 or 12.5% of the Global Borrowing Base for three consecutive Business Days, and (b) continuing until, during each of the preceding 30 consecutive days, no Event of Default has existed and Global Availability has been more than the greater of $12,500,00015,000,000 or 12.5% of the Global Borrowing Base, in each case measured at the close of business on each such day.
Business Day: any day except (a) a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, North Carolina or New York City and (b) with respect to a U.K. Loan, any day on which banks are not open for the transaction of banking business in London, England.
Cal Dive: Cal Dive I – Title XI, Inc., a Texas corporation.
CAM Exchange: the exchange of the U.S. Lenders’ interests and the U.K. Xxxxxxx’ interests provided for in Section 13.5.
CAM Exchange Date: the date which Agent in its discretion designates as the “CAM Exchange Date” by notice to the Lenders as a result of the occurrence of (a) any Event of Default under Section 11.1(j) or (b) an acceleration of Loans and termination of the Commitments pursuant to Section 11.2.
CAM Percentage: as to each Lender, a fraction (expressed as a percentage), (a) the numerator of which shall be the aggregate amount of such Xxxxxx’s Commitment immediately
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prior to the CAM Exchange Date, and (b) the denominator of which shall be the amount of the Commitments of all the Lenders immediately prior to the CAM Exchange Date.
Capital Expenditures: any expenditures made by an Obligor or Subsidiary for an asset which will be used in a year or years subsequent to the year in which the expenditure is made and which asset is properly classifiable in relevant financial statements of such Person as property, equipment or improvements, fixed assets, or a similar type of capital asset in accordance with GAAP (for purpose of this definition, a “capital asset”). For purposes of this definition, (i) the aggregate purchase price of capital assets purchased in the relevant period shall be included in Capital Expenditures only to the extent of the amount by which such aggregate purchase price exceeds the aggregate amount of net proceeds received by an Obligor or Subsidiary for the sale of capital assets during such period, and (ii) the purchase price of a capital asset acquired, constructed, improved, enlarged, developed, re-constructed or repaired with proceeds from insurance shall be included in Capital Expenditures only to the extent of the net amount by which such purchase price exceeds the amount of such proceeds; provided, that such amounts shall not be less than zero.
Capital Lease: any lease required to be capitalized or treated as a financing lease for financial reporting purposes in accordance with GAAP; provided, that, notwithstanding the foregoing, any lease that would have been characterized as an operating lease in accordance with GAAP prior to the date of Helix’s adoption of ASC 842 (whether or not such lease was in effect on such date) shall not be a Capital Lease, and any such lease shall be, for all purposes of this Agreement (including, for the avoidance of doubt, financial covenant calculations), treated as though it were reflected on Xxxxx’s consolidated financial statements in the same manner as an operating lease would have been reflected prior to Helix’s adoption of ASC 842.
Cash Collateral: cash delivered to Agent (or an Issuing Bank or Secured Bank Product Provider, as applicable) to Cash Collateralize any Obligations, and all interest, dividends, earnings and other proceeds relating thereto.
Cash Collateralize: the delivery of cash to Agent (or an Issuing Bank or Secured Bank Product Provider, as applicable), as security for the payment of Obligations, in an amount equal to (a) 105% of LC Obligations denominated in Dollars or Sterling, (b) 110% of LC Obligations denominated in any other currency, and (c) with respect to any inchoate, contingent or other Obligations (including fees, expenses, indemnification obligations and Secured Bank Product Obligations), Agent’s (or the Secured Bank Product Provider’s, as applicable) good faith estimate of the amount due or to become due. “Cash Collateralization” has a correlative meaning. For the avoidance of doubt, U.S. Eligible Pledged Cash shall not be deemed to have Cash Collateralized any Obligations.
Cash Equivalents: (a) marketable obligations issued or unconditionally guaranteed by, and backed by the full faith and credit of, the U.S. government, maturing within 12 months of the date of acquisition or up to $5,000,000 with maturities up to five years after the date of the acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case which are issued by (i) Bank of America, (ii) any other commercial bank that is a Lender or an Affiliate of a Lender, or (iii) any commercial bank that is (A) organized under the laws of the United States or any state or district thereof or is the principal banking subsidiary of a bank holding company organized under the laws
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of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, and (B) (1) rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx’x at the time of acquisition, (2) if it or its parent issues commercial paper such commercial paper is rated as described in clause (iii)(B)(1) of this definition, or (iii) has combined capital and surplus of at least $500,000,000; (c) repurchase obligations with a term of not more than 30 days for underlying investments of the types described in clauses (a) and (b) entered into with any bank described in clause (b); (d) commercial paper issued by Bank of America, another Lender or any other Person rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx’x, and maturing within nine months of the date of acquisition; (e) shares of any money market fund or investment program that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either Xxxxx’x or S&P; and (f) in the case of any Subsidiary that is not organized in the United States, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Subsidiary for cash management purposes.
Cash Management Services: services relating to operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, blocked account, lockbox and stop payment services.
CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §9601 et seq.).
Change in Law: the occurrence, after the date hereof, of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by a Governmental Authority; or (c) the making or issuance of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, that “Change in Law” shall include, regardless of the date enacted, adopted or issued, all requests, rules, guidelines, requirements or directives (i) under or relating to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any European equivalent regulation (such as the European Market and Infrastructure Regulation), or (ii) promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any similar authority) including CRR and CRR II or any other Governmental Authority.
Change of Control: (a) any Person or group of Persons (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 promulgated by the Commission under said Act), either directly or indirectly, of 35% or more of the total voting power of the outstanding voting stock of Helix; (b) Helix ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in all Borrowers; (c) a change in the majority of directors of Helix during any 12 month period, unless approved by the majority of directors serving at the beginning of such period; (d) the sale or transfer of all or substantially all assets of an Obligor, except to another Obligor or as expressly provided in Section 10.2.5; or (e) a “change of control”, “fundamental change” or similar event occurs under any Senior Notes or any other Borrowed Money with a principal amount exceeding $25,000,000.
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Claims: all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations or replacement of Agent or any Lender) incurred by any Indemnitee or asserted against any Indemnitee by any Obligor or other Person, in any way relating to any (a) Loans, Letters of Credit, Loan Documents, Borrower Materials, or the use thereof or transactions relating thereto, (b) action taken or omitted in connection with any Loan Documents, (c) existence or perfection of any Liens, or realization on any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, (e) failure by any Obligor to perform or observe any terms of any Loan Document, or (f) reliance by any Indemnitee on a Communication executed using an Electronic Signature or in the form of an Electronic Record, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.
Closing Date: as defined in Section 6.1.
CME: CME Group Benchmark Administration Limited.
Code: the Internal Revenue Code of 1986.
Collateral: all Property described in Section 7.1, all Property described in any Security Documents as security for any Obligations, and all other Property that now or hereafter secures (or is intended to secure) any Obligations, except to the extent released from such security interests in accordance with the terms of such Security Documents.
Commitment: for any Lender, the aggregate amount of such Lender’s Borrower Group Commitments. “Commitments” means the aggregate amount of all Borrower Group Commitments, which amount shall as of the FirstSecond Amendment Effective Date be equal to $100,000,000120,000,000.
Commodity Exchange Act: the Commodity Exchange Act (7 U.S.C. §1 et seq.).
Communication: any notice, intimation, request, election, representation, certificate, report, disclosure, statement, authorization, approval, consent, waiver, document, amendment or transmittal of information of any kind in connection with a Loan Document, including any Borrower Materials or Modification of a Loan Document.
Compliance Certificate: a certificate, in the form of Exhibit B or otherwise reasonably satisfactory to Agent, by which Obligors certify (a) compliance with Section 10.3 (which is required to be calculated whether or not a Covenant Trigger Period is in effect even if not tested at such time), (b) that no Default or Event of Default has occurred and is continuing, and (c) certain financial statements.
Conforming Changes: Alternative Currency Conforming Changes and Term SOFR Conforming Changes, as applicable.
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Connection Income Taxes: Other Connection Taxes that are imposed on or measured by net income (however denominated) or are franchise or branch profits Taxes.
Contingent Obligation: any obligation of a Person arising from a guaranty, guarantee, indemnity or other assurance of payment or performance of any obligation (“primary obligation”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, guarantee, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; or (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. 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 less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.
Control: possession, directly or indirectly, of the power to direct or cause direction of a Person’s management or policies, whether through the ability to exercise voting power, by contract or otherwise.
Covenant Trigger Period: the period (a) commencing on any day that Global Availability is less than the greater of $10,000,00012,000,000 or 10% of the Global Borrowing Base and (b) continuing until, during each of the preceding 30 consecutive days, Global Availability exceeded the greater of $10,000,00012,000,000 or 10% of the Global Borrowing Base, in each case measured at the close of business on each such day.
Covered Entity: (a) a “covered entity,” as defined and interpreted in accordance with 12 C.F.R. §252.82(b); (b) a “covered bank,” as defined in and interpreted in accordance with 12 C.F.R. §47.3(b); or (c) a “covered FSI,” as defined in and interpreted in accordance with 12 C.F.R. §382.2(b).
CPR: means either CRR-EU or, as the context may require, CRR-UK.
CRR: means either CRR-EU or, as the context may require, CRR-UK.
CRR-EU: means regulation 575/2013 of the European Union on prudential requirements for credit institutions and investment firms and regulation 2019/876 of the European Union amending Regulation (EU) No 575/2013 and all delegated and implementing regulations supplementing that Regulation.
CRR-UK: means CRR-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.
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CRR II: means either CRR II-EU or, as the context may require, CRR II-UK.
CRR II-EU: means regulation 2019/876 amending CRR-EU as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/2012 and all delegated and implementing regulations supplementing that Regulation.
CRR II-UK: means CRR II-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.
Daily Simple SOFR: with respect to any applicable determination date, the secured overnight financing rate published on the FRBNY website (or any successor source satisfactory to Agent).
Dayrate Billing: any billing for services provided by a Borrower that is calculated by multiplying the number of days (pro rata) for such services by one or more agreed daily rates respecting such services, including without limitation the related mobilization and demobilization fees, if any, and materials and services charges from third party vendors (but excluding milestone, progress or task-based xxxxxxxx).
Decommissioning Liabilities: with respect to a Person, its liabilities for plugging and abandonment of oil and gas xxxxx.
Debt: as applied to any Person, without duplication, (a) all Borrowed Money; (b) all performance, warranty, decommissioning, importation and surety bonds for the benefit of such Person; (c) in the case of an Obligor, the Obligations; (d) all obligations to pay the deferred purchase price of property or services (other than (x) trade payables and accrued expenses in the Ordinary Course of Business, (y) earn out obligations and deferred compensation until such obligations become a liability on the balance sheet of such Person in accordance with GAAP, and (z) agreements providing for indemnification, purchase price adjustments or similar obligations in connection with acquisitions and dispositions); (e) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property; (f) all obligations, whether or not contingent, in respect of Disqualified Equity Interests valued at, in the case of redeemable preferred Equity Interests, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Equity Interests plus accrued and unpaid dividends; (g) all payments that would be required to be made in respect of any Swap after giving effect to any netting agreement with respect thereto in the event of a termination (including an early termination) on the date of determination; and (h) all Contingent Obligations of such Person in respect of any of the foregoing; provided, that Debt shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, and (iii) endorsements of instruments for deposit or collection in the Ordinary Course of Business. The
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Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer.
Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.
Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate or fee (including margin) otherwise applicable thereto.
Defaulting Lender: any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days; (b) has notified Agent or any Borrower that such Lender does not intend to comply with its funding obligations hereunder or under any other credit facility, or has made a public statement to that effect; (c) has failed, within three Business Days following request by Agent or any Borrower, to confirm in a manner reasonably satisfactory to Agent and Borrowers that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding (including reorganization, liquidation, or appointment of a receiver, custodian, administrator or similar Person by the Federal Deposit Insurance Corporation or any other regulatory authority) or Bail-In Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an equity interest in such Lender or parent company unless the ownership provides immunity for such Lender from jurisdiction of courts within the United States or the U.K., as applicable, or from enforcement of judgments or writs of attachment on its assets, or permits such Lender or Governmental Authority to repudiate or otherwise to reject such Lender’s agreements; and provided further, that a Lender shall not be deemed to be a Defaulting Lender under clause (a) or (b) if it has notified Agent and Borrowers in writing that it will not make a funding because a condition to funding (specifically identified in the notice) is not or cannot be satisfied.
Deposit Account: (a) any “deposit account” as such term is defined in Article 9 of the UCC and including all sub-accounts relating thereto and (b) outside of the U.S., any bank account with a deposit function.
Deposit Account Control Agreement: control agreement reasonably satisfactory to Agent executed by an institution maintaining a Deposit Account for an Obligor, to perfect Agent’s Lien on such account.
Designated Jurisdiction: a country or territory, or a government or agency of a government of a country or territory, that is the target of a Sanction.
Dilution Percent: the percent, determined for Borrowers’ most recent Fiscal Quarter, equal to (a) without duplication, the aggregate amount of bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other non-cash dilutive items with respect to Accounts (excluding (x) discounts and reduced pricing offered to customers for adding additional xxxxx to their order and (y) to the extent any Accounts owed by HWCG LLC constitute Eligible Accounts, credits provided to HWCG LLC in respect of members’ utilization of a Vessel), divided by (b) gross sales.
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Disposition: the sale, license, lease (for Vessels, pursuant to which possession of a Vessel or equipment is transferred to another Person), consignment, conveyance, transfer or other disposition (in one transaction, a series of transactions or otherwise) of property of a Person, including a sale-leaseback transaction, synthetic lease, issuance of Equity Interests by a subsidiary, Division, or sale, assignment, assignation, conveyance, transfer or other disposal, with or without recourse, of any notes, accounts receivable or related rights; provided, that in no event shall the non-exclusive licensing of intellectual property or the execution, delivery and performance of service contracts, in each case, in the Ordinary Course of Business constitute a “Disposition” hereunder.
Disqualified Equity Interests: any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to 91 days after the Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt or (ii) any Equity Interests referred to in clause (a) above, in each case at any time on or prior to 91 days after the Maturity Date, or (c) contains any mandatory repurchase obligation which may come into effect prior to Full Payment of all Obligations; provided, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the 91 days after the Maturity Date shall not constitute Disqualified Equity Interests if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the Full Payment of the Obligations; provided, that if such Equity Interests are issued to any employees, directors, officers or members of management pursuant to a plan for the benefit of employees, directors, officers or members of management of Borrowers or Subsidiaries, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Borrowers or Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employees’, directors’, officers’ or management members’ termination, death or disability.
Distribution: any (a) declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or (b) purchase, redemption, or other acquisition or retirement for value of any Equity Interest.
Division: the division of assets, liabilities and/or obligations of a Person among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the original dividing Person and pursuant to which the original dividing Person may or may not survive.
Dollar Equivalent: on any date, with respect to any amount denominated in Dollars, such amount in Dollars, and with respect to any stated amount in a currency other than Dollars, the amount of Dollars that Agent determines (which determination shall be conclusive and binding absent manifest error) would be necessary to be sold on such date at the applicable Spot Rate to obtain the stated amount of the other currency.
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Dollars: lawful money of the United States.
Domestic Subsidiary: any Subsidiary of Helix organized in the U.S., any state thereof or the District of Columbia.
Dominion Account: the U.K. Dominion Account and/or the U.S. Dominion Account, as the context may require.
Dominion Trigger Period: the period (a) commencing on any day that (i) an Event of Default described in Section 11.1(a) or (j) occurs, (ii) an Event of Default other than those described in clause (a)(i) above occurs and Agent or Required Lenders in their discretion so elect to implement cash dominion, or (iii) Global Availability is less than the greater of $12,500,00015,000,000 or 12.5% of the Global Borrowing Base, and (b) continuing until, during each of the preceding 30 consecutive days, no Event of Default has existed and Global Availability has been more than the greater of $12,500,00015,000,000 or 12.5% of the Global Borrowing Base, in each case measured at the close of business on such day.
EBITDA: for any fiscal period and determined on a consolidated basis for Obligors and Subsidiaries in accordance with GAAP, the result of (a) net income, plus (b) without duplication, the sum of the following to the extent deducted from net income: (i) interest expense, plus (ii) income tax expense (net of any tax benefits but not to exceed tax expense), plus (iii) depreciation and amortization expense, plus (iv) losses arising from the sale of capital assets, plus (v) any documented out-of-pocket fees, costs and expenses incurred in connection with negotiating and documenting the Loan Documents and any amendments or other modifications thereto, plus (vi) any extraordinary or non-recurring non-cash losses, plus (vii) non-cash expenses associated with share-based compensation, minus (c) without duplication, the sum of the following to the extent included in net income: (i) gains arising from the sale of capital assets, plus (ii) any extraordinary or non-recurring gains, plus (iii) the amount of all non-cash gains increasing net income for such period. Notwithstanding the foregoing, EBITDA shall not include (to the extent otherwise included therein and whether by consolidation, the equity method of accounting or otherwise) the results of any joint venture (except that net income may include the amount of dividends or distributions actually paid in cash during such period by such joint venture to a wholly-owned Subsidiary).
EEA Financial Institution: (a) any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses and is subject to consolidated supervision with its parent.
EEA Member Country: any of the member states of the European Union, Iceland, Liechtenstein and Norway.
EEA Resolution Authority: any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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Electronic Record and Electronic Signature: as defined in 15 U.S.C. §7006.
Eligible Account Debtor Jurisdictions: (a) with respect to U.S. Borrowers, the United States, Canada, Australia, New Zealand, the U.K. and such other jurisdictions determined by Agent in its discretion, in each case together with any state or province thereof (as applicable) and (b) with respect to U.K. Borrowers, the U.K., the Federal Republic of Germany, the Kingdom of the Netherlands, Norway, France, Luxembourg, Italy, Belgium, Sweden, Switzerland, Denmark, Finland, Ireland, Singapore and such other jurisdictions determined by Agent in its discretion, in each case together with any state, nation or province thereof (as applicable). Notwithstanding the foregoing, Borrowers shall deliver such instruments and agreements, and shall take such actions, as Agent may reasonably request from time to time under Applicable Law of the foregoing jurisdictions to evidence or perfect its Lien on any Accounts in order for such jurisdictions to remain Eligible Account Debtor Jurisdictions.
Eligible Accounts: the U.K. Eligible Accounts and/or the U.S. Eligible Accounts, as the context requires.
Eligible Assignee: (a) a Lender, Affiliate of a Lender or Approved Fund that satisfies Section 12.13; (b) an assignee approved by Borrower Agent (which approval shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten Business Days after notice of the proposed assignment) and Agent; or (c) during an Event of Default, any Person acceptable to Agent in its discretion.
Enforcement Action: any action to enforce any Obligations (other than Secured Bank Product Obligations) or Loan Documents or to exercise any rights or remedies relating to any Collateral, whether by judicial action, expropriation, attachment, sequestration, distress, arrestment, inhibition, diligence, self-help, notification of Account Debtors, setoff or recoupment, credit bid, deed in lieu of foreclosure, action in an Insolvency Proceeding or otherwise in relation to analogous process in any other relevant jurisdiction.
Environmental Laws: Applicable Laws (including programs, permits and guidance promulgated by regulators) relating to public health (other than occupational safety and health regulated by OSHA) or the protection or pollution of the environment, including the Resource Conservation and Recovery Act (42 U.S.C. §§6991-6991i), Clean Water Act (33 U.S.C. §1251 et seq.) and CERCLA.
Environmental Notice: a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise.
Environmental Release: a release as defined in CERCLA or under any other Environmental Law.
Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in a partnership (whether general, limited, limited liability or joint venture); (c) member in a limited
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liability company; or (d) other Person having any other form of equity security or ownership interest, including without limitation, warrants, options, or other rights to purchase or acquire, an equity security or ownership interest; provided, that the term Equity Interests shall exclude any Debt or debt security convertible into, or exchangeable for, Equity Interests prior to the conversation or exchange thereof (including the Senior Notes and the Subject Earnout).
ERISA: the Employee Retirement Income Security Act of 1974.
ERISA Affiliate: any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) withdrawal of an Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) complete or partial withdrawal of an Obligor or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) filing of a notice of intent to terminate, treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or institution of proceedings by the PBGC to terminate a Pension Plan; (e) determination that a Pension Plan is considered an at-risk plan or a plan in critical or endangered status under the Code or ERISA; (f) an event or condition that constitutes grounds under Section 4042 of ERISA for termination of, or appointment of a trustee to administer, any Pension Plan; (g) imposition of any liability on an Obligor or ERISA Affiliate under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA; or (h) failure by an Obligor or ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or to make a required contribution to a Multiemployer Plan.
ESG-Related Pricing Adjustment: any pricing adjustment requested by U.S. Borrower Agent and its sustainability coordinator (or equivalent) to be made to the Applicable Margin, U.S. Unused Line Fee Rate and U.K. Unused Line Fee Rate, based on specific metrics and performance targets to be determined by U.S. Borrower Agent and Agent, related to Environmental, Social and Governance changes implemented by U.S. Borrower Agent and its Subsidiaries in their respective businesses, such pricing adjustment to be reflected in an amendment to this Agreement, which amendment will become effective at 5:00 p.m. on the fifth (5th) Business Day after Agent shall have submitted such amendment to the Lenders unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent (who shall promptly notify U.S. Borrower Agent) written notice that such Required Lenders object to such amendment, and to be limited to an aggregate adjustment of up to a 0.05% increase or decrease to the Applicable Margin and a 0.01% increase or decrease to each of the U.S. Unused Line Fee Rate and U.K. Unused Line Fee Rate. In the event that the Required Lenders deliver a written notice objecting to any such ESG-Related Pricing Adjustment amendment, an alternative ESG-Related Pricing Adjustment amendment may be effectuated with the consent of the Required Lenders, U.S. Borrower Agent and Agent.
EU Bail-In Legislation Schedule: the EU Bail-In Legislation Schedule published by the Loan Market Association, as in effect from time to time.
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Event of Default: as defined in Section 11.
Examination Trigger Period: at any time during any calendar year, if Global Availability is less than the greater of $15,000,00018,000,000 or 15% of the Global Borrowing Base.
Excluded Account: any (a) Deposit Account (i) exclusively used for payroll, payroll taxes or employee benefits, (ii) constituting a zero-balance disbursement account reasonably acceptable to Agent, (iii) exclusively holding deposits made by any purchaser of a Vessel in contemplation of the sale of such Vessel otherwise permitted under this Agreement (until the closing of such sale), (iv) constituting a fiduciary, escrow or trust account or an account holding third party deposits, in each case solely for the benefit of an unaffiliated third party in connection with a transaction permitted under this Agreement, until the closing of the related transaction (for the avoidance of doubt, other than customer deposits in the Ordinary Course of Business which are not excluded hereunder), (v) exclusively constituting a tax account (including a sales tax account), and (vi) constituting a xxxxx cash account containing not more than $250,000 on deposit therein at any time (but no more than $750,000 for all such accounts in the aggregate), (b) that certain escrow/settlement account maintained by Xxxxxxx Xxxxx & Associates Inc. with account number 00000000, so long as (i) such account is only used to hold funds to repurchase shares of Helix, (ii) funds deposited therein do not remain in such account for more than two Business Days, and (iii) such repurchases constitute Distributions otherwise permitted under Section 10.2.3, and (c) any Deposit Account described in and required by Section 8.2.5(e).
Excluded Guarantors: (a) Cal Dive, for so long as the Vessel Q4000 is under a bareboat charter from Cal Dive to an Obligor and Cal Dive is subject to the MARAD Debt, (b) HOSL or any other Subsidiary that owns the Vessel Q7000 until such time as a Borrower Agent requests to include Accounts in the U.K. Borrowing Base with respect to the Vessel Q7000 and (c) Helix Offshore International Holdings S.á x.x.
Excluded Property: (a) any permit or license or any contractual obligation entered into by any Obligor (i) that prohibits or requires the consent of any Person other than the Obligors or Subsidiaries which has not been obtained as a condition to the creation by such Obligor of a Lien on any right, title or interest in such permit, license or contractual obligation (other than customer contracts, master services agreements or work orders and Accounts which shall constitute part of the Collateral regardless) or (ii) to the extent that Applicable Law prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (i) and (ii), to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Applicable Law and any such consent has not been obtained, provided, that the foregoing shall cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of such permit, license or contract not subject to the prohibitions specified in clauses (i) or (ii) above, (b) any Property owned by any Obligor that is subject to a Purchase Money Lien or a Capital Lease permitted under this Agreement to the extent a security interest therein would violate such Permitted Purchase Money Debt or Capital Lease or create a right of termination in favor of the other party thereto (other than another Obligor or Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or other Applicable Law, (c) any other assets the pledge of which or grant of a security interest in which is prohibited by Applicable Law (to the extent effective after giving
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effect to the anti-assignment provisions of the UCC and other Applicable Law), provided, that the foregoing shall cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of Property not subject to the prohibitions, and (d) Excluded Accounts (other than of a type described in clause (a)(vi) of the definition thereof); provided, that, notwithstanding the foregoing in each case, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property, including monies due or to become due to an Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).
Excluded Subsidiary: any of (a) the Excluded Guarantors, (b) any Subsidiary organized under the laws of a state other than the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, and (c) with respect to Subsidiaries organized under the laws of the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, Subsidiaries (other than Excluded Guarantors) that, as of the last day of the Fiscal Quarter of Helix most recently ended, had both revenues and assets that constitute less than 5.0% of the consolidated revenues and assets of Helix and its Subsidiaries in such jurisdiction (determined on a jurisdiction by jurisdiction basis).
Excluded Swap Obligation: with respect to an Obligor, each Swap Obligation as to which, and only to the extent that, such Obligor’s guaranty of or grant of a Lien as security for such Swap Obligation is or becomes illegal under the Commodity Exchange Act because the Obligor does not constitute an “eligible contract participant” as defined in the act (determined after giving effect to any keepwell, support or other agreement for the benefit of such Obligor and all guarantees of Swap Obligations by other Obligors) when such guaranty or grant of Lien becomes effective with respect to the Swap Obligation. If a hedging agreement governs more than one Swap Obligation, only the Swap Obligation(s) or portions thereof described in the foregoing sentence shall be Excluded Swap Obligation(s) for the applicable Obligor.
Excluded Taxes: (a) Taxes imposed on or measured by a Recipient’s net income (however denominated), franchise Taxes and branch profits Taxes (i) as a result of such Recipient being organized under the laws of, or having its principal office or applicable Lending Office located in, the jurisdiction imposing such Tax, or (ii) constituting Other Connection Taxes; (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to its interest in a Loan or Commitment pursuant to a law in effect when the Lender acquires such interest (except pursuant to an assignment request by Borrower Agent under Section 13.4) or changes its Lending Office, unless the Taxes were payable to its assignor immediately prior to such assignment or to the Lender immediately prior to its change in Lending Office; (c) Taxes attributable to a Recipient’s failure to comply with Section 5.9; and (d) U.S. federal withholding Taxes imposed pursuant to FATCA. In no event shall “Excluded Taxes” include any withholding Tax imposed on amounts paid by or on behalf of a foreign Obligor to a Recipient that has complied with Section 5.9.1.
Existing Credit Agreement: that certain Xxxxxxx and Restated Credit Agreement dated as of June 30, 2017, among Helix, as borrower, Bank of America, as administrative agent, and the other Persons party thereto, as amended prior to the Closing Date.
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Existing Letters of Credit: those certain Letters of Credit outstanding on the Closing Date described on Schedule 1.1(b).
Existing Term Loan: the term loan outstanding under the Existing Credit Agreement prior to the Closing Date.
Extraordinary Expenses: all costs, expenses or advances incurred by any Agent Indemnitee during a Default, Event of Default or Obligor’s Insolvency Proceeding, including those relating to any (a) audit, inspection, repossession, storage, repair, appraisal, insurance, processing, preparation or advertising for sale, sale, collection, or other preservation of or realization upon Collateral; (b) action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any creditor(s) of an Obligor or any other Person) in any way relating to any Collateral, Agent’s Liens, Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) Enforcement Action or exercise of any rights or remedies in, or the monitoring of, an Insolvency Proceeding; (d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; and (e) negotiation and documentation of any Modification, workout, restructuring, forbearance, liquidation or collection with respect to any Loan Document, Collateral or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage and insurance costs, permit fees, utility expenses, legal and accounting fees and expenses, appraisal costs, brokers’ and auctioneers’ commissions, environmental study costs, wages and salaries paid to employees of any Obligor or independent contractors in liquidating Collateral, and travel expenses.
FATCA: Sections 1471 through 1474 of the Code (including any amended or successor version if substantively comparable and not materially more onerous to comply with), and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
FATCA Deduction: a deduction or withholding from a payment under a Loan Document required by FATCA.
Federal Funds Rate: for any day, the per annum rate calculated by FRBNY based on such day’s federal funds transactions by depository institutions (as determined in such manner as FRBNY shall set forth on its public website from time to time) and published on the next Business Day by FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Rate be less than zero.
Financial Statement Reporting Trigger: the period (a) commencing on any day that (i) an Event of Default occurs or (ii) Global Availability is less than the greater of $15,000,00018,000,000 or 15% of the Global Borrowing Base and (b) continuing until, during each of the preceding 30 consecutive days, (i) no Event of Default has existed and (ii) Global Availability has exceeded the greater of $15,000,00018,000,000 or 15% of the Global Borrowing Base, in each case measured at the close of business of any day (provided that, if a Financial Statement Reporting Period has commenced, Agent shall receive at least one set of monthly financial statements under Section 10.1.2(c)).
First Amendment Effective Date: July 1, 2022.
Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal Year.
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Fiscal Year: the fiscal year of Obligors and Subsidiaries for accounting and tax purposes, ending on December 31 of each year.
Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for Obligors and Subsidiaries for the most recent 12 months, of (a) EBITDA minus the sum of (i) Capital Expenditures (except those financed with Borrowed Money other than Loans) and (ii) cash taxes paid net of any tax refunds received in cash during such period (but this clause (ii) shall not be less than zero), to (b) Fixed Charges.
Fixed Charges: the sum of (a) interest expense paid or required to be paid in cash (other than payment-in-kind), (b) scheduled principal payments paid or required to be paid in cash on Borrowed Money (other than the Loans and excluding repayments of intercompany Debt), (c) Distributions paid in cash (other than Distributions solely among Obligors) and (d) cash contributions to any Pension Plan (to the extent not accounted for in the calculation of EBITDA); provided, that clause (b) above shall not include (i) the final lump sum principal payments made on or prior to the Closing Date to satisfy in full the Existing Term Loan and the Nordea Loan, (ii) the principal payments made following the Closing Date for the redemption or discharge of the 2022 Notes and the 2023 Notes or (iii) other than for purposes of determining the Fixed Charge Coverage Ratio under the Payment Conditions (in which case any such payment shall be included in clause (b) above), the Subject Payment (to the extent paid in cash).
FLSA: the Fair Labor Standards Act of 1938.
Flood Laws: the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973 and related laws.
Foreign Lender: any Lender that is not a U.S. Person.
Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.
FRBNY: the Federal Reserve Bank of New York.
Fronting Exposure: a Defaulting Lender’s interest in LC Obligations, Swingline Loans and Protective Advances, except to the extent Cash Collateralized by the Defaulting Lender or allocated to other Lenders hereunder.
Full Payment: with respect to any Obligations, (a) the full cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding), excluding contingent indemnification and other inchoate obligations for which no claim has been asserted or identified; (b) Cash Collateralization of all LC Obligations (or delivery of standby letter(s) of credit reasonably acceptable to the applicable Issuing Bank, in the amount of required Cash Collateral); (c) Cash Collateralization of Obligations that are inchoate or contingent in nature for which a claim has been asserted or identified; and (d) Cash Collateralization of Secured Bank Product Obligations (other than Secured Bank Products allowed to remain outstanding by Bank Product providers). No Loans shall be deemed to have been paid in full unless all Commitments related to such Loans are terminated.
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GAAP: generally accepted accounting principles in effect in the United States from time to time, subject to Section 1.2.
Global Availability: the Global Borrowing Base minus Global Revolver Usage.
Global Borrowing Base: the sum of the U.K. Borrowing Base and the U.S. Borrowing Base; provided, that the U.K. Borrowing Base may not exceed 50% of the Global Borrowing Base.
Global Revolver Usage: the sum of the U.K. Revolver Usage and the U.S. Revolver Usage.
Governmental Approvals: all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.
Governmental Authority: any federal, state, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or European Central Bank).
Guarantor Payment: as defined in Section 5.10.3.
Guarantors: each Person that guarantees payment or performance of Obligations. As of the ClosingSecond Amendment Effective Date, the Guarantors include each Borrower (in respect of the obligations of the other Borrowers) and the following: Helix Robotics Solutions International Corp.; Helix Energy Solutions (U.K.) Limited; Kommandor LLC; Helix Subsea Construction, Inc; Helix Q5000 Holdings LLC (formerly Helix Q5000 Holdings S.à a.r.l. and); Helix Offshore LimitedLtd; Helix Alliance Decom, LLC; Alliance-Triton GOM Holdings, LLC; Alliance Maritime Holdings, LLC; Xxxxxxx Xxxxx Holdings, LLC; Alliance Industry Holdings, LLC; and Alliance Special Ventures Holdings, LLC.
Guaranty: each guaranty agreement executed by a Guarantor in favor of Agent, including this Agreement.
Helix: as defined in the introductory paragraph of this Agreement.
Helix Q5000 Holdings S.à x.x.: a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 00X xxx Xxxxxxxxx Xxxxx, X-0000 Xxxxxxxxxx, Grand Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés, Luxembourg) under number B183815.
HOSL: Helix Offshore Services Limited, a Scottish corporation.
Indemnified Taxes: (a) Taxes, other than Excluded Taxes, imposed on or relating to any payment of an Obligation; and (b) to the extent not otherwise described in clause (a), Other Taxes.
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Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees.
Insolvency Proceeding: (a) any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (i) the entry of an order for relief under the Bankruptcy Code or any other insolvency, debtor relief or debt adjustment law; (ii) the appointment of a receiver, monitor, trustee, liquidator, administrator, conservator, administrator receiver, compulsory manager or other custodian for such Person or any part of its Property; or (iii) an assignment, assignation, composition, compromise, arrangement or trust mortgage for the benefit of or (as the case may be) with any creditors or (b) any proceeding commenced by or against a Person under any provision of the Insolvency Act 1986 (UK), the Corporate Insolvency & Governance Act 2020 (UK) or under any other insolvency law of any jurisdiction of the U.K.
Insolvency Regulation: Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast).
Intellectual Property: all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.
Intellectual Property Claim: any claim or assertion (whether in writing, by suit or otherwise) that an Obligor’s or Subsidiary’s ownership or use of Intellectual Property or other Property violates another Person’s Intellectual Property.
Interest Payment Date: (a) for each Term SOFR Loan, the last day of the applicable Interest Period and, if the Interest Period is more than three months, each three month anniversary of the beginning of the Interest Period; and (b) for all other Loans, the first day of each calendar month.
Interest Period: as defined in Section 3.1.3.
Investment: an Acquisition, an acquisition of record or beneficial ownership of any Equity Interests or Debt of a Person, or an advance, loan or capital contribution to or other investment in a Person, including any Contingent Obligation in respect of Debt of another Person.
Investment Grade Account Debtor: any Account Debtor whose long-term issuer rating is BBB- (or then equivalent grade) or higher by S&P or Baa3 (or then equivalent grade) or higher by Xxxxx’x.
IRS: the United States Internal Revenue Service.
Issuing Bank: each of Bank of America and Xxxxx Fargo Bank, National Association (including any Lending Office of the foregoing), or any replacement issuer therefor appointed pursuant to Section 2.2.4.
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Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.
LC Application: an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance reasonably satisfactory to Issuing Bank and Agent.
LC Conditions: U.K. LC Conditions and/or U.S. LC Conditions, as the context requires.
LC Documents: U.S. LC Documents and/or U.K. LC Documents, as the context requires.
LC Obligations: U.K. LC Obligations and/or U.S. LC Conditions, as the context requires
LC Request: a request by Borrower Agent for issuance of a Letter of Credit, in form reasonably satisfactory to Agent and Issuing Bank.
Xxxxxx Xxxxxxxxxxx: Lenders and Secured Bank Product Providers, and their officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.
Lenders: lenders party to this Agreement (including Agent in its capacity as provider of Swingline Loans or Protective Advances, U.S. Lenders and U.K. Xxxxxxx) and any Person who hereafter becomes a “Lender” pursuant to an Assignment, including any Lending Office of the foregoing.
Lending Office: the office (including any domestic or foreign Affiliate or branch) designated as such by Agent, a Lender or Issuing Bank by notice to Borrower Agent and, if applicable, Agent.
Letter of Credit: U.K. Letter of Credit or U.S. Letter of Credit, as the context requires.
Letter of Credit Subline: the lesser of (a) $10,000,000 (which is subdivided $5,500,000 for Bank of America and $4,500,000 for Xxxxx Fargo Bank, National Association)20,000,000 and (b) the sum of the U.K. Commitments and the U.S. Commitments. The Letter of Credit Subline will be further subdivided between the U.K. and U.S. tranches of this Agreement from time to time as agreed between the U.S. Borrower Agent, Agent and Issuing Bank.
License: any license or agreement under which an Obligor is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business.
Licensor: any Person from whom an Obligor obtains the right to use any Intellectual Property.
Lien: an interest in Property securing an obligation or claim, including any lien, security interest, charge, standard security, assignation in security, pledge, hypothecation, assignment, trust, reservation, assessment right, encroachment, easement, right-of-way, covenant, condition, restriction, lease, or other title exception or encumbrance; provided that, notwithstanding the foregoing, contingent or discretionary rights to demand collateral in the documentation for surety
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and performance bonds shall not constitute “Liens” hereunder or otherwise be deemed to encumber any Property until such time as collateral is provided.
Lien Waiver: an agreement, in form and substance reasonably satisfactory to Agent, by which a lessor waives or subordinates any Lien it may have on the Collateral, and allows Agent to enter the premises and remove, store and dispose of Collateral.
Loan: a loan made by a Lender under the credit facility established by this Agreement, including U.K. Loans and U.S. Loans.
Loan Documents: this Agreement, Other Agreements and Security Documents.
Local Time: with respect to (a) U.S. Loans, Central time in the United States and (b) U.K. Loans, prevailing time in London, England.
MARAD Debt: those certain bonds issued by Cal Dive guaranteed by the United States and due February 2027, in an aggregate principal amount of $53,000,000.
Margin Stock: as defined in Regulation U of the Federal Reserve Board of Governors.
Material Adverse Effect: the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, has or could be reasonably expected to have (a) a material adverse effect on the business, operations, Properties or financial condition of the Obligors, taken as a whole, (b) a material impairment of the rights and remedies of the Agent or any Lender under any the Loan Documents, (c) a material adverse effect on the validity or priority of Agent’s Lien on a material portion of the Collateral; (d) a material impairment on the ability of the Obligors, taken as a whole, to perform their obligations under the Loan Documents, including repayment of the Obligations; or (e) otherwise materially impairs the ability of Agent or any Lender to enforce or collect the Obligations or to realize upon any material portion of the Collateral.
Material Contract: (a) any agreement or arrangement to which an Obligor or Subsidiary is party (other than the Loan Documents) (i) that is deemed to be a material contract under any securities law applicable to Helix, including the Securities Act of 1933 or (ii) for which breach, termination or nonperformance could reasonably be expected to have a Material Adverse Effect; or (b) any agreement or arrangement to which an Obligor is party (other than the Loan Documents) that relates to Debt in an outstanding principal amount of $25,000,000 or more.
Material Debt: any Debt of any Borrower in an amount, individually or in the aggregate, of $50,000,000 or more.
Maturity Date: the earliest of (a) September 30, 2026; (b) the date that is 91 days prior to earliest maturity of the 2026 Notes (to the extent the then outstanding principal balance thereof is $50,000,000 or more) or any other Material Debt (in each case, if such Debt remains outstanding on such date and has not been refinanced or extended on terms reasonably satisfactory to Agent to a date at least 91 days following the date in clause (a)); or (c) any date on which the aggregate Commitments terminate hereunder.
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Modification: any amendment, supplement, extension, approval, consent, waiver, change or other modification of or under a Loan Document, including any waiver of a Default or Event of Default.
Moody’s: Xxxxx’x Investors Service, Inc. or any successor acceptable to Agent.
Multiemployer Plan: any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which an Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Multiple Employer Plan: a Plan with two or more contributing sponsors, including an Obligor or ERISA Affiliate, at least two of whom are not under common control, as described in Section 4064 of ERISA.
Net Proceeds: with respect to a Disposition, proceeds (including, when received, any deferred or escrowed payments) received by an Obligor in cash from such disposition, net of (a) costs and expenses actually incurred in connection therewith, including legal, accounting and investment banking fees and sales commissions; (b) amounts applied to repayment of Debt secured by a Permitted Lien senior to Agent’s Liens on the Collateral sold; (c) transfer or similar taxes paid or reasonably estimated by Helix to be payable as a result of such Disposition; (d) escrows and reserves for indemnities and similar items, until the same are no longer needed; (e) the amount of any purchase price or similar adjustment claimed by any Person to be owed by Helix or any Subsidiary, until such time as such claim has been settled or otherwise finally resolved, or paid or payable by Helix or any Subsidiary, in either case in respect of such Disposition; and (f) other expenses approved by Agent; provided, that any release from reserves, escrows or holdbacks to an Obligor shall constitute Net Proceeds at such time.
Nordea Loan: that certain loan made pursuant to the Credit Agreement dated as of September 26, 2014, between Helix Q5000 Holdings S.à x.x. and Nordea Bank Finland plc, which loan was repaid in full prior to the Closing Date.
Notice of Borrowing: notice by Borrower Agent of a Borrowing, in form reasonably satisfactory to Agent.
Notice of Conversion/Continuation: notice by Borrower Agent for conversion or continuation of a Loan as a Term SOFR Loan, in form to reasonably satisfactory to Agent.
Notice of Prepayment: notice by Borrower Agent of prepayment of a Loan, in form reasonably satisfactory to Agent.
Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees, indemnification obligations, Claims and other amounts payable by Obligors under Loan Documents, (d) Secured Bank Product Obligations, and (e) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, in each case whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute
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or contingent, due or to become due, primary or secondary, or joint or several; provided, that Obligations of an Obligor shall not include its Excluded Swap Obligations.
Obligor: each Borrower, Guarantor or other Person that is liable for payment of any Obligations or that has granted a Lien on its assets in favor of Agent to secure any Obligations.
OFAC: Office of Foreign Assets Control of the U.S. Treasury Department.
Ordinary Course of Business: the ordinary course of business of any Obligor or Subsidiary, consistent with past practices or, with respect to actions taken by such Person for which no past practices exist, consistent with past practices of similarly situated companies, and, in each case, undertaken in good faith.
Organic Documents: with respect to any Person, its charter, certificate or articles of incorporation, bylaws, memorandum (if any) and articles of organization or association, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.
OSHA: the Occupational Safety and Hazard Act of 1970.
Other Agreement: each LC Document, fee letter, Borrower Material, Communication, note, assignment, document, instrument or agreement of any kind (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any transaction relating hereto.
Other Connection Taxes: Taxes imposed on a Recipient due to a present or former connection between it and the taxing jurisdiction (other than connections arising from the Recipient having executed, delivered, become party to, performed obligations or received payments under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced, or sold or assigned an interest in, any Loan or Loan Document).
Other Taxes: all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a Lien under, or otherwise with respect to, any Loan Document, except Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 13.4(c)).
Overadvance: a U.K. Overadvance or a U.S. Overadvance, as the context requires.
Participant: as defined in Section 13.2.
Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
Payment Conditions: with respect to any transaction that references the “Payment Conditions”:
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(a)no Event of Default shall have occurred and be continuing on the date of such transaction or would result after giving effect thereto;
(b)either (i) Global Availability is higher than the greater of $20,000,00024,000,000 or 20.0% of the Global Borrowing Base after giving effect to and at the close of business on each day during the 30 consecutive day period immediately prior to such transaction on a pro forma basis as if the transaction were consummated at the beginning of such period or (ii) both (A) Global Availability is higher than the greater of $17,500,00021,000,000 or 17.5% of the Global Borrowing Base after giving effect to and at the close of business on each day during the 30 consecutive day period immediately prior to such transaction on a pro forma basis as if the transaction were consummated at the beginning of such period and (B) the Fixed Charge Coverage Ratio for the most recently ended trailing 12 months for which financial statements have been delivered shall be greater than 1.00 to 1.00 on a pro forma basis for such transaction (whether or not the financial covenant is being tested at such time); and
(c)with respect to any such transaction or series of related transactions with a value in excess of $25,000,000, at least two Business Days prior to (but in no event more than five Business Days prior to) such transaction, Agent shall have received a certificate of a Senior Officer of U.S. Borrower Agent (i) certifying satisfaction of the foregoing conditions concurrently with any such transaction and (ii) setting forth in reasonable detail the pro forma calculations of such Fixed Charge Coverage Ratio and/or Global Availability.
Payment Item: each check, draft or other item of payment payable to an Obligor, including those constituting proceeds of any Collateral.
PBGC: the Pension Benefit Guaranty Corporation.
Pension Funding Rules: Code and ERISA rules regarding minimum required contributions (including installment payments) to Pension Plans set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
Pension Plan: any employee pension benefit plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan years.
Permitted Acquisition: any Acquisition as long as (a) no Default or Event of Default exists or is caused thereby; (b) the Acquisition is consensual; (c) the assets, business or Person being acquired is useful or engaged in the business of Obligors and Subsidiaries; (d) no Debt or Liens are assumed or incurred, except as permitted by Sections 10.2.1 and 10.2.2; (e) the Payment Conditions are satisfied; and (f) for any Acquisition where the total consideration exceeds $10,000,000, Borrowers deliver to Agent, at least five Business Days prior to the Acquisition (or such shorter period as Agent may agree), copies of all material agreements relating thereto and a
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certificate, in form and substance reasonably satisfactory to Agent, stating that the Acquisition is a “Permitted Acquisition” and demonstrating compliance with the foregoing requirements.
Permitted Debt: as defined in Section 10.2.1.
Permitted Discretion: a determination made in good faith, using reasonable business judgment (from the perspective of a secured, asset-based lender).
Permitted Disposition: a Disposition permitted by Section 10.2.5.
Permitted Lien: as defined in Section 10.2.2.
Permitted Maritime Liens: are (a) liens for unpaid master, officer and crew wages in accordance with usual maritime practice, (b) liens for salvage, (c) liens arising by operation of law for necessaries, repairs and maintenance of a Vessel, and (d) other common law maritime liens or liens arising under the Federal Maritime Lien Act (or similar state statutes).
Permitted Purchase Money Debt: Purchase Money Debt incurred or issued by any Obligor or Subsidiary that is unsecured or secured only by a Purchase Money Lien, in an aggregate principal amount not to exceed $50,000,000 at any time.
Person: any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity of any kind.
Plan: any Benefit Plan maintained for employees of an Obligor or ERISA Affiliate, or to which an Obligor or ERISA Affiliate is required to contribute on behalf of its employees.
Platform: as defined in Section 14.3.3.
Prime Rate: the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement.
Pro Rata: with respect to any Lender, a percentage (rounded to the ninth decimal place) determined (a) by dividing the amount of such Lender’s Borrower Group Commitment to a Borrower Group by the aggregate outstanding Borrower Group Commitments of all Lenders to such Borrower Group; or (b) following termination of such Borrower Group Commitments, by dividing the amount of such Lender’s Loans and LC Obligations to members of such Borrower Group by the aggregate outstanding Loans and LC Obligations of all Lenders to members of such Borrower Group or, if all Loans and LC Obligations to members of such Borrower Group have been paid in full and/or Cash Collateralized, by dividing such Lender’s and its Affiliates’ remaining Obligations to members of such Borrower Group by the aggregate remaining Obligations of all Lenders and their respective Affiliates to such Borrower Group.
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Properly Contested: with respect to any obligation of an Obligor or Subsidiary, (a) the obligation is subject to a bona fide dispute regarding validity, amount or the Obligor’s or Subsidiary’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP or IFRS, as applicable; (d) non-payment could not reasonably be expected to have a Material Adverse Effect, nor result in forfeiture or sale of any Collateral of an Obligor; (e) no Lien is imposed on Collateral of an Obligor, unless bonded and stayed within five Business Days to the reasonable satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.
Property: any interest in any kind of property or asset, whether real, heritable, personal or mixed, or tangible or intangible.
Protective Advances: U.K. Protective Advances and/or U.S. Protective Advances, as the context requires.
PTE: a prohibited transaction class exemption issued by the U.S. Department of Labor, as amended from time to time.
Purchase Money Debt: Debt (other than the Obligations) incurred to finance the acquisition, leasing, construction or improvement of fixed assets or payments pursuant to a Capital Lease of fixed assets; provided, that such Debt (a) is incurred within 90 days before or after acquisition of such fixed assets for the purpose of financing any of the purchase price thereof and (b) does not exceed the cost of acquiring such fixed assets.
Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the fixed assets so purchased, leased or improved with such Debt (and identifiable proceeds and products thereof) and constituting a Capital Lease or a purchase money security interest under the UCC.
Qualified ECP: an Obligor with total assets exceeding $10,000,000, or that constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of such act.
Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any real or heritable Property or any buildings, structures, parking areas or other improvements thereon.
Recipient: Agent, Issuing Bank, any Lender or any other recipient of a payment to be made by an Obligor under a Loan Document or on account of an Obligation.
Refinancing Conditions: no Event of Default described in Section 11.1(a) or (j) then exists and no Default or Event of Default would result after giving effect to the incurrence of such Refinancing Debt and such Debt, when compared to the Debt being extended, renewed or refinanced, (a) does not have a greater principal amount (except by an amount equal to unpaid accrued interest and premium on the Debt being refinanced that is capitalized, OID and upfront fees and other fees and expenses reasonably incurred in connection therewith), earlier final maturity or shorter weighted average life, (b) is subordinated to the Obligations to at least the same
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extent as the Debt being refinanced is subordinated (if applicable), (c) has representations, covenants, defaults and other terms that, taken as a whole, are not materially less favorable to Obligors than the Debt being refinanced (except for covenants or other provisions applicable only to the periods after the Maturity Date in effect at such time), and (d) has no additional obligor, guarantor, Lien, or other recourse to any additional Person or Property than the Debt being refinanced.
Refinancing Debt: Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.1(c), 10.2.1(e), (k) or (l).
Relevant Governmental Body: (a) with respect to Loans denominated in Dollars, the Federal Reserve Board and/or FRBNY, or a committee officially endorsed or convened by the Federal Reserve Board and/or FRBNY, and (b) with respect to Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto.
Relevant Rate: with respect to any Loans in (a) Dollars, SOFR and (b) Xxxxxxxx, XXXXX, as applicable.
Relevant Rate Loans: Loans whose interest is determined by reference to a Relevant Rate.
Rent and Charges Reserve: the U.K. Rent and Charges Reserve and/or the U.S. Rent and Charges Reserve, as the context requires.
Report: as defined in Section 12.2.3.
Reportable Event: any event set forth in Section 4043(c) of ERISA, other than an event for which the 30 day notice period has been waived.
Required Lenders: two or more Lenders holding more than 50% of (a) the aggregate outstanding Commitments; or (b) after termination of the Commitments, the aggregate outstanding Loans and LC Obligations or, upon Full Payment of all Loans and LC Obligations, the aggregate remaining Obligations; provided, that (i) Commitments, Loans and other Obligations held by a Defaulting Lender and its Affiliates shall be disregarded in making such calculation, but any related Fronting Exposure shall be deemed held as a Loan or LC Obligation by the Lender (including in its capacity as Issuing Bank) that funded the applicable Loan or issued the applicable Letter of Credit, (ii) at any time there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders), Required Lenders must include at least two Lenders (who are not Affiliates of one another), and (iii) in the event there is only one Lender at any time, such Lender shall constitute Required Lenders.
Rescindable Amount: as defined in Section 4.1.3(c).
Resolution Authority: an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority.
Restrictive Agreement: an agreement (other than a Loan Document) that conditions or restricts the right of any Obligor or Subsidiary to incur or repay the Obligations, to grant Liens on
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any assets to secure the Obligations, to declare or make Distributions, or to repay any intercompany Debt.
Revolver Usage: U.K. Revolver Usage or U.S. Revolver Usage, as the context requires.
S&P: Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., or any successor acceptable to Agent.
Sanction: a sanction administered or enforced by the U.S. government (including OFAC), United Nations Security Council, European Union, U.K. government or other applicable sanctions authority, and including any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by any Governmental Authority with jurisdiction over Agent, any Lender or any Obligor or any of their respective Subsidiaries or Affiliates.
Second Amendment Effective Date: June 23, 2023.
Secured Bank Product Obligations: Debt, obligations and other liabilities with respect to Bank Products owing by an Obligor or Subsidiary of an Obligor to a Secured Bank Product Provider; provided, that Secured Bank Product Obligations of an Obligor shall not include its Excluded Swap Obligations.
Secured Bank Product Provider: (a) Bank of America or any of its Affiliates; and (b) any other Lender or Affiliate of a Lender that is providing a Bank Product, provided such provider delivers written notice to Agent, in the form of Exhibit C hereto or as otherwise reasonably satisfactory to Agent, (i) describing the Bank Product and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section 12.14.
Secured Parties: Agent, Issuing Bank, Lenders and Secured Bank Product Providers.
Securities Account: any present and future “securities account” as defined in Article 8 of the UCC, including all monies, “uncertificated securities”, “securities entitlements” and other “financial assets” (each as defined in Article 8 of the UCC) contained therein.
Securities Account Control Agreement: a control agreement reasonably satisfactory to Agent executed by an institution maintaining a Securities Account for an Obligor, to perfect Agent’s Lien on such account.
Security Documents: the U.K. Security Documents, Guaranties, Deposit Account Control Agreements, Securities Account Control Agreements, and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations (including this Agreement).
Senior Officer: the chairman of the board, president, chief executive officer or chief financial officer of the applicable Obligor.
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Senior Notes: the 2022 Notes, the 2023 Notes and the 2026 Notes.
Senior Notes Indentures: the 2022 Notes Indenture, the 2023 Notes Indenture and the 2026 Notes Indenture.
Settlement Report: a report summarizing Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Commitments.
SOFR: the secured overnight financing rate as administered by FRBNY (or a successor administrator).
Solvent: as to any Person, on any date of determination, such Person on such date (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and are scheduled to mature in the ordinary course of business; (c) is able to pay all of its debts as they are scheduled to mature in the ordinary course of business; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates; (g) with respect to any Person incorporated in the U.K., (i) it is not unable and does not admit its inability to pay its debts as they fall due, (ii) it is not deemed to, or is not declared to, be unable to pay its debts under applicable law, (iii) it has not suspended or threatened to suspend making payments on any of it debts or (iv) by reason of actual or anticipated financial difficulties, it has not commenced negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; and (h) with respect to any Person incorporated under the laws of Luxembourg, (i) is not in a state of cessation of payments (cessation de paiements) and (ii) has not lost its creditworthiness (ébranlement de crédit). “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
XXXXX: with respect to any applicable determination date the Sterling Overnight Index Average Reference Rate published on such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time); provided, that if such determination date is not a Business Day, XXXXX means such rate that applied on the first Business Day immediately prior thereto.
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XXXXX Xxxxxxxxxx: with respect to XXXXX, 0.05% per annum.
XXXXX Daily Rate: for any date, the rate per annum equal to XXXXX determined pursuant to the definition thereof, plus the XXXXX Adjustment; provided, that such rate shall not be less than zero. Any change in the XXXXX Daily Rate shall be effective from and including such date of change without further notice.
Specified Obligor: an Obligor that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 5.10).
Spot Rate: the exchange rate, as determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding business day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agent’s principal foreign exchange trading office for the first currency.
Stated Amount: the outstanding amount of a Letter of Credit, including any automatic increase or tolerance (whether or not then in effect) provided by the Letter of Credit or related LC Documents.
Xxxxxxxx: the lawful currency of the U.K.
Subject Acquisition: the Acquisition of the Equity Interests of the companies described in clauses (b) and (c) of the definition of “Alliance Companies” by Helix Alliance Decom, LLC, a Delaware limited liability company, a wholly owned Subsidiary of Helix pursuant to the Alliance Purchase Agreement.
Subject Earnout: the Earn-Out Consideration (as defined in the Alliance Purchase Agreement, as in effect on the First Amendment Effective Date, and as amended, supplemented or modified from time to time, subject to Section 10.2.7).
Subject Payment: one or more payments made by Helix Alliance Decom, LLC, a Delaware limited liability company, or Helix, in connection with the Subject Earnout.
Subject Payment Due Date: the estimated Earn Out Payment Date (as defined in the Alliance Purchase Agreement).
Subordinated Debt: Debt incurred by an Obligor that is expressly subordinate and junior in right of payment to Full Payment of all Obligations pursuant to a subordination agreement or provision reasonably satisfactory to Agent.
Subsidiary: any entity at least 50% of whose voting securities or Equity Interests is owned by an Obligor or combination of Obligors (including indirect ownership through other entities in which an Obligor directly or indirectly owns 50% of the voting securities or Equity Interests).
Successor Rate: an Alternative Currency Successor Rate or Term SOFR Successor Rate, as applicable.
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Swap: as defined in Section 1a(47) of the Commodity Exchange Act.
Swap Obligations: obligations under an agreement relating to a Swap.
Swingline Loan: U.K. Swingline Loans and/or U.S. Swingline Loans, as the context requires.
Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term SOFR: (a) for any Interest Period relating to a Term SOFR Loan, a per annum rate equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such Interest Period, with a term equivalent to such Interest Period (or if such rate is not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate on the U.S. Government Securities Business Day immediately preceding such date), plus the SOFR Adjustment for such Interest Period; and (b) for any interest calculation relating to a Base Rate Loan on any day, a fluctuating rate of interest equal to the Term SOFR Screen Rate with a term of one month commencing that day; provided, that in no event shall Term SOFR be less than zero.
Term SOFR Conforming Changes: with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Term SOFR Successor Rate, as applicable, any conforming changes to the definitions of U.S. Base Rate, U.K. Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Agent's discretion, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Agent determines is reasonably necessary in connection with the administration of any Loan Document).
Term SOFR Loan: a Loan that bears interest based on clause (a) of the definition of Term SOFR.
Term SOFR Scheduled Unavailability Date: as defined in Section 3.6.2.
Term SOFR Screen Rate: the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time).
Term SOFR Successor Rate: as defined in Section 3.6.2.
Transferee: any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations.
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UCC: the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction.
U.K.: The United Kingdom of Great Britain and Northern Ireland.
U.K. Availability: the U.K. Borrowing Base minus U.K. Revolver Usage.
U.K. Availability Reserve: the sum (without duplication) of (a) the U.K. Rent and Charges Reserve; (b) the U.K. Bank Product Reserve; (c) the aggregate amount of liabilities secured by Liens upon Collateral (other than Vessels and related equipment) of U.K. Domiciled Obligors and the aggregate amount of claims that are or may be senior to Agent’s Liens upon such Collateral, including Liens and claims arising under non-UCC law (but imposition of any such reserve shall not waive any Event of Default arising therefrom); (d) the U.K. Priority Payables Reserve; (e) subcontractor payables reserves; and (f) additional reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion may elect to impose from time to time. Notwithstanding the foregoing, (i) the amount of any such reserve shall have a reasonable relationship to the event, condition or other matter that is the basis for such reserve, and (ii) no reserves shall be duplicative of items accounted for through the eligibility criteria. Agent shall provide U.S. Borrower Agent with notice of Agent’s intent to establish new or increase existing U.K. Availability Reserves (which notice may be by telephone or email). Agent shall be reasonably available during normal business hours to discuss the proposed new or increased U.K. Availability Reserves, and Borrowers may take such action as may be required by Agent so that the circumstance, condition, event or other contingency that is the basis for such new or increased U.K. Availability Reserves no longer exists in a manner and to the extent reasonably satisfactory to the Agent. In no event shall such notice and opportunity limit the right of Agent to establish or increase U.K. Availability Reserves (unless Agent shall have determined that the circumstance, condition, event or other contingency that is the basis for such new or increased U.K. Availability Reserves no longer exists or has otherwise been adequately addressed by Borrowers), and such new or increased U.K. Availability Reserves shall not be effective until the third Business Day after the date notice of such proposed new U.K. Availability Reserve or increase was given by Agent to U.S. Borrower Agent. During the period pending Agent’s implementation of any new or increased U.K. Availability Reserve, Agent may (but is not required to) limit Borrowings on a pro forma basis for such U.K. Availability Reserves.
U.K. Bank Product Reserve: the aggregate amount of reserves established by Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations for the account of the U.K. Domiciled Obligors.
U.K. Base Rate: (a) with respect to U.K. Loans denominated in Dollars, Term SOFR for a one month interest period as in effect on the first Business Day of the current calendar month, plus the SOFR Adjustment, and (b) with respect to U.K. Loans denominated in Sterling, the XXXXX Daily Rate; provided, that in no event shall the U.K. Base Rate be less than zero.
U.K. Base Rate Loan: a U.K. Loan that bears interest based on the U.K. Base Rate.
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U.K. Billed Accounts Formula Amount: (a) 90% of the Value of U.K. Eligible Accounts owing by Investment Grade Account Debtors, plus (b) 85% of the Value of U.K Eligible Accounts owing by other Account Debtors; provided, that such percentages shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%. The amounts included in the computation of the U.K Billed Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.
U.K. Bond and Floating Charge: the bond and floating charge governed by Scots law and executed by the U.K. Domiciled Obligors (and as the case may be any additional U.K. Domiciled Obligor incorporated in Scotland following the Closing Date) in favour of the Agent.
U.K. Borrower Agent: as defined in Section 4.4.
U.K. Borrowers: (a) the Initial U.K. Borrowers and (b) each other U.K. Subsidiary that after the Closing Date has executed a supplement or joinder to this Agreement in accordance with Section 10.1.9 and has satisfied the other requirements set forth in Section 10.1.9 in order to become a U.K. Borrower.
U.K. Borrower DTTP Filing: an HM Revenue & Customs Form DTTP2 duly completed and filed by the relevant U.K. Borrower, which:
(a)where it relates to a U.K. Treaty Lender that is a party to this Agreement as a Lender on the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence stated opposite that Xxxxxx’s name in Schedule 1.1, and (i) where the U.K. Borrower is a party to this Agreement on the date of this Agreement, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or (ii) where the U.K. Borrower is not a party to this Agreement on the date of this Agreement, is filed with HM Revenue & Customs within 30 days of the date on which that U.K. Xxxxxxxx becomes a party to this Agreement; or
(b)where it relates to a U.K. Treaty Lender that is not a party to this Agreement as a Lender on the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a party to this Agreement as a Lender, and (i) where the U.K. Borrower is a party to this Agreement as at the date on which that U.K. Treaty Lender becomes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or (ii) where the U.K. Borrower is not a party to this Agreement as at the date on which that U.K. Treaty Lender comes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that U.K. Xxxxxxxx becomes a party to this Agreement.
U.K. Borrowing Base: on any date of determination and based on the most recent U.K. Borrowing Base Report (as it may be adjusted hereunder), an amount equal to the lesser of (a) the aggregate U.K. Commitments; or (b) the sum of (i) the U.K. Billed Accounts Formula Amount, plus (ii) the U.K. Unbilled Accounts Formula Amount, minus (iii) the U.K. Availability Reserve.
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U.K. Commitment: for any U.K. Lender, its obligation to make U.K. Loans and to participate in U.K. LC Obligations up to the maximum principal amount shown on Schedule 1.1(a), as hereafter modified pursuant to Section 2.1.7 or an Assignment to which it is a party. “U.K. Commitments” means the aggregate amount of all U.K. Lenders’ U.K. Commitments. As of the FirstSecond Amendment Effective Date, the aggregate amount of the U.K. Commitments is $35,000,000.
U.K. Commitment Termination Date: the earliest to occur of (a) the U.S. Commitment Termination Date; (b) the date on which U.K. Borrowers terminate the U.K. Commitments pursuant to Section 2.1.4; or (c) the date on which the U.K. Commitments are terminated pursuant to Section 11.2.
U.K. CTA: Corporation Tax Act 2009 (U.K.) as amended from time to time.
U.K. Debenture: the debenture governed by English law and executed by the U.K. Domiciled Obligors in favour of the Agent.
U.K. Domiciled Obligor: each U.K. Borrower and each U.K. Subsidiary now or hereafter party hereto as a Guarantor, and “U.K. Domiciled Obligors” means all such Persons, collectively.
U.K. Dominion Account: each account established by a U.K. Borrower at Bank of America (London) or another bank acceptable to Agent, over which Agent shall have exclusive control for withdrawal purposes.
U.K. Eligible Account: an Account owing to a U.K. Borrower from the rendition of services and that arises in the Ordinary Course of Business, is payable in Dollars, Sterling or Euros, has been invoiced and is deemed by Agent, in its Permitted Discretion, to be a U.K. Eligible Account. Without limiting the foregoing, no Account shall be a U.K. Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor are not U.K. Eligible Accounts under the foregoing clause; (c) when aggregated with other Eligible Accounts owing by the Account Debtor and its Affiliates to the Borrowers, it exceeds 20% of the Borrowers’ aggregate Eligible Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time, provided, that for BP Exploration Operating Company Limited and Royal Dutch Shell plc, such concentration limit shall instead be 40%), but ineligibility shall be limited to the amount of such excess; (d) it does not conform with a covenant or representation herein relating to Accounts; (e) it is owing by a creditor or supplier, or is otherwise subject to offset, counterclaim, dispute, deduction, discount (other than customary discounts for prompt payment in the Ordinary Course of Business), recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor from which the Account Debtor has not emerged (unless the payment of such Accounts from the Account Debtor is guaranteed in a manner and by a Person reasonably acceptable to Agent); or the Account Debtor has failed, has suspended (for more than 15 consecutive Business Days) or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is the target of any Sanction or on any specially designated nationals list maintained by OFAC; or the U.K. Xxxxxxxx is not able to bring suit or enforce remedies against the Account Debtor through judicial process; (g) the Account Debtor is not
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organized under or has its principal offices or assets outside an Eligible Account Debtor Jurisdiction applicable to such U.K. Borrower, unless the Account is supported by (i) a letter of credit, guaranty or other credit support reasonably acceptable to Agent or (ii) credit insurance reasonably satisfactory and assigned to Agent; (h) it is owing by a Governmental Authority; (i) it is not subject to a duly perfected, first priority Lien in favor of Agent or is subject to any other Lien (in each case other than Liens permitted under Section 10.2.2(c) and (d)); (j) the services giving rise to it have been rejected or otherwise disputed by the Account Debtor (but only to the extent of such rejection or dispute); (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended or the Account Debtor has made a partial payment; (m) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, bill-and-hold, sale or return, sale on approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes; (n) it (i) represents a progress billing (it being understood and agreed that Dayrate Billings do not constitute progress xxxxxxxx), except that this clause (i) shall not render task-based xxxxxxxx ineligible where the relevant task is complete and the Account therefor is fully earned and entitled to be invoiced, (ii) constitutes retainage, except to the extent that the relevant project is complete and the retainage is final, due and owing with the conditions to its release, and acceptance of the work by the Account Debtor, fully satisfied, or (iii) relates to services for which a performance, surety or completion bond or similar assurance has been issued (whether or not constituting Permitted Debt), except that this clause (iii) shall not exclude Accounts from completed bonded projects where the services are complete and accepted by the Account Debtor and the bond therefor cannot be drawn; provided, that the aggregate amount of Accounts included as Eligible Accounts due to the exceptions in this clause (n) shall not exceed $5,000,0007,500,000 at any time (on a combined basis with clause (n) of the definition of U.S. Eligible Account); (o) it is a credit card sale or an amount due from a credit card issuer or processor; (p) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; or (q) it arises from a contract served by a Vessel (or other equipment including remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers) that (i) has been arrested and not released, (ii) becomes the subject of a Lien that is not a Permitted Lien, (iii) is in a war zone requiring the suspension of Vessel (or other equipment) operations, (iv) fails to receive, renew or be granted the consent of a Governmental Authority necessary for its operation or (v) is otherwise incapable of generating Accounts and earnings, in each case to the extent that any of the foregoing could reasonably be expected to adversely affect the collectability of such Account in any material respect. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.
U.K. Facility Collateral: Collateral that now or hereafter secures (or is intended to secure) any of the U.K. Facility Obligations, including Property of the Guarantors pledged to secure the U.K. Facility Obligations under their guarantee of the U.K. Facility Obligations.
U.K. Facility Obligations: all Obligations of the U.K. Domiciled Obligors (including, for the avoidance of doubt, all Obligations of the U.K. Domiciled Obligors as guarantors of the U.S. Facility Obligations).
U.K. Facility Secured Parties: Agent, any Issuing Bank of U.K. Letters of Credit, U.K. Lenders and Secured Bank Product Providers of Bank Products to U.K. Domiciled Obligors, together with the U.S. Facility Secured Parties.
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U.K. Financial Institution: any BRRD Undertaking (as defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
U.K. ITA: the Income Tax Act 2007 (U.K.) as amended from time to time.
U.K. LC Conditions: the following conditions necessary for issuance of a U.K. Letter of Credit: (a) each of the conditions set forth in Section 6.2; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline and U.K. Revolver Usage does not exceed the U.K. Borrowing Base; (c) the U.K. Letter of Credit and payments thereunder are denominated in Dollars or other currency satisfactory to Agent and Issuing Bank; and (d) the purpose and form of the proposed U.K. Letter of Credit are satisfactory to Agent and Issuing Bank in their discretion.
U.K. LC Documents: all documents, instruments and agreements (including requests and applications) delivered by any U.K. Borrower or any other Person to Issuing Bank or Agent in connection with any U.K. Letter of Credit.
U.K. LC Obligations: the sum of (a) all amounts owing by a U.K. Borrower for drawings under U.K. Letters of Credit; and (b) the Stated Amount of all outstanding U.K. Letters of Credit.
U.K. Lender: any Lender that has issued a U.K. Commitment.
U.K Letter of Credit: any standby or documentary letter of credit, foreign guaranty, documentary bankers acceptance, indemnity, reimbursement agreement or similar instrument issued by Issuing Bank for the account or benefit of a U.K. Domiciled Obligor, including the Existing Letters of Credit.
U.K. Loan: a Loan made by a U.K. Lender to U.K. Borrowers pursuant to Section 2.1, which Loan shall be (a) denominated in Dollars and shall be either a U.K. Base Rate Loan or a Term SOFR Loan or (b) denominated in Sterling and shall be a U.K. Base Rate Loan, in each case as selected by the Borrower Agent, and including any U.K. Swingline Loan or U.K. Protective Advance.
U.K. Non-Bank Lender: a Lender which is not a party to this Agreement as a Lender on the date of this Agreement and which gives a U.K. Tax Confirmation in the documentation which it executes on becoming a party to this Agreement as a Lender.
U.K. Overadvance: as defined in Section 2.1.5(b).
U.K. Priority Payables Reserve: as of any date of determination, a reserve in such amount as the Agent may determine in its Permitted Discretion to reflect the full amount of any liabilities or amounts which (by virtue of any Liens or any statutory provision) rank or are capable of ranking in priority to the Agent’s Liens and/or for amounts which may represent costs relating to the enforcement of the Agent’s Liens including, without limitation, but only to the extent prescribed
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pursuant to law and statute then in force in the U.K., (a) amounts due to employees in respect of unpaid wages and holiday pay, (b) the amount of all scheduled but unpaid pension contributions, (c) the “prescribed part” of floating charge realisations held for unsecured creditors, (d) amounts for any creditor of any preferential debt arising at law including, amounts due to HM Revenue and Customs in respect of valued added tax (VAT), pay as you earn (PAYE) (including student loan repayments), employee national insurance contributions and construction industry scheme deductions, (e) amounts for the prior payment of certain winding up expenses, (f) amounts in relation to the rights of parties holding effectively executed diligence, (g) amounts for liabilities secured by Liens otherwise afforded priority (provided that the imposition of any such reserve shall not waive an Event of Default arising therefrom), and (h) the expenses and liabilities incurred by any administrator (or other insolvency officer) and any remuneration of such administrator (or other insolvency officer).
U.K. Protective Advances: as defined in Section 2.1.6.
U.K. Qualifying Lender: (a) a Lender that is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is (i) a Lender: (A) that is a bank (as defined for the purpose of section 879 of the U.K. ITA) making an advance under a Loan Document and is within the charge to U.K. corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the U.K. CTA; or (B) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the U.K. ITA) at the time such advance was made and within the charge to U.K. corporation tax as respects any payments of interest made in respect to such advance, (ii) a Lender which is (A) a company resident in the U.K. for U.K. tax purposes, (B) a partnership, each member of which is (x) a company so resident in the U.K.; or (y) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the U.K. CTA) the whole or any share of the interest payable in respect of that advance that falls to it by reason of Part 17 of the U.K. CTA; or (C) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing its chargeable profits (within the meaning of section 19 of the U.K. CTA) or (iii) a U.K. Treaty Lender; or (b) a Lender which is a building society (as defined for the purpose of section 880 of the U.K. ITA) making an advance under a Loan Document.
U.K. Rent and Charges Reserve: to the extent that original, non-duplicative books and records relating to the Collateral are located at the U.K. Borrowers’ headquarters, a reserve equal to three months’ rent and other charges that could reasonably be expected to be payable to the landlord of the U.K. Borrowers’ headquarters location, unless such Person has executed a Lien Waiver reasonably acceptable to Agent.
U.K. Reimbursement Date: as defined in Section 2.3.2.
U.K. Resolution Authority: the Bank of England or any other public administrative authority having responsibility for the resolution of any U.K. Financial Institution.
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U.K. Revolver Usage: (a) the aggregate amount of outstanding U.K. Loans; plus (b) the aggregate Stated Amount of outstanding U.K. Letters of Credit (except, for purposes of determining U.K. Availability only, to the extent Cash Collateralized by the U.K. Borrowers pursuant to Section 2.3.3(a)).
U.K. Security Documents: the U.K. Debenture, the U.K. Bond and Floating Charge and any other document governed by English law or Scots law granting a Lien over any asset as security for the Obligations.
U.K. Subsidiary: any Subsidiary of Helix that is organized or incorporated under the laws of the United Kingdom or any legal jurisdiction thereof.
U.K. Swingline Loan: any Borrowing of U.K. Base Rate Loans funded with Agent’s funds, until such Borrowing is settled among U.K. Lenders or repaid by U.K. Borrowers.
U.K. Tax Confirmation: confirmation by a Lender that the person beneficially entitled to interest payable to such Lender in respect of an advance under a Loan Document is either (a) a company resident in the U.K. for U.K tax purposes, (b) a partnership, each member of which is (i) a company so resident in the U.K.; or (ii) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the U.K. CTA) the whole or any share of the interest payable in respect of that advance that falls to it by reason of Part 17 of the U.K. CTA or (c) a company not so resident in the U.K. that carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of such advance in computing the chargeable profits (within the meaning of section 19 of the U.K. CTA) of such company.
U.K. Tax Deduction: in relation to any U.K. Borrower, a deduction or withholding from a payment under any Loan Document for and on account of any Taxes, other than a FATCA Deduction.
U.K. Treaty Lender: a Lender which:
(a)is treated as a resident of a U.K. Treaty State for the purposes of the relevant U.K. Treaty;
(b)does not carry on a business in the U.K. through a permanent establishment with which that Xxxxxx’s participation in any advance is effectively connected; and
(c)fulfils any other conditions which must be fulfilled under the relevant U.K. Treaty by residents of that U.K. Treaty State (subject to the completion of any necessary procedural or filing requirements) for such residents to obtain full exemption from U.K. taxation on interest payable to that Lender in respect of an advance under a Loan Document.
U.K. Treaty State: a jurisdiction having a double taxation agreement (a U.K. Treaty) with the U.K. which makes provision for full exemption from tax imposed by the U.K. on interest.
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U.K. Unbilled Accounts Formula Amount: 80% of the Value of U.K. Unbilled Eligible Accounts; provided, that (a) the aggregate amount of U.K. Unbilled Eligible Accounts and U.S. Unbilled Eligible Accounts included in the Global Borrowing Base shall not exceed $25,000,00030% of the Commitments at any time and (b) such advance rate percentage shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%. The amounts included in the computation of the U.K Unbilled Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.
U.K. Unbilled Eligible Accounts: any Account owing to a U.K. Borrower which would qualify as a “U.K Eligible Account” except that the invoice with respect thereto has not yet been submitted to the Account Debtor, so long as such Accounts have not been unbilled for more than 30 consecutive days following the creation of the unbilled Account; provided, that for Royal Dutch Shell plc, such time period shall instead be 45 consecutive days.
U.K. Unused Line Fee Rate: a per annum rate equal to (a) 0.50%, if average daily U.K. Revolver Usage was 50% or less of the U.K. Commitments during the preceding calendar month, or (b) 0.375%, if average daily U.K. Revolver Usage was more than 50% of the U.K. Commitments during such month.
Unfunded Pension Liability: the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to the Code, ERISA or the Pension Protection Act of 2006 for the applicable plan year.
Upstream Payment: a Distribution by a Subsidiary of an Obligor to such Obligor.
U.S.: the United States of America.
U.S. Availability: the U.S. Borrowing Base minus U.S. Revolver Usage.
U.S. Availability Reserve: the sum (without duplication) of (a) the U.S. Rent and Charges Reserve; (b) the U.S. Bank Product Reserve; (c) the aggregate amount of liabilities secured by Liens upon Collateral of U.S. Domiciled Obligors and the aggregate amount of claims that are or may be senior to Agent’s Liens upon such Collateral, including Liens and claims arising under non-UCC law (but imposition of any such reserve shall not waive any Event of Default arising therefrom); (d) reserves for sales taxes; (e) subcontractor payables reserves; and (f) additional reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion may elect to impose from time to time. Notwithstanding the foregoing, (i) the amount of any such reserve shall have a reasonable relationship to the event, condition or other matter that is the basis for such reserve, and (ii) no reserves shall be duplicative of items accounted for through the eligibility criteria. Agent shall provide U.S. Borrower Agent with notice of Agent’s intent to establish new or increase existing U.S. Availability Reserves (which notice may be by telephone or email). Agent shall be reasonably available during normal business hours to discuss the proposed new or increased U.S. Availability Reserves, and Borrowers may take such action as may be required by Agent so that the circumstance, condition, event or other contingency that is the basis for such new or increased U.S. Availability Reserves no longer exists in a manner and to
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the extent reasonably satisfactory to the Agent. In no event shall such notice and opportunity limit the right of Agent to establish or increase U.S. Availability Reserves (unless Agent shall have determined that the circumstance, condition, event or other contingency that is the basis for such new or increased U.S. Availability Reserves no longer exists or has otherwise been adequately addressed by Borrowers), and such new or increased U.S. Availability Reserves shall not be effective until the third Business Day after the date notice of such proposed new U.S. Availability Reserve or increase was given by Agent to U.S. Borrower Agent. During the period pending Agent’s implementation of any new or increased U.S. Availability Reserve, Agent may (but is not required to) limit Borrowings on a pro forma basis for such U.S. Availability Reserves.
U.S. Bank Product Reserve: the aggregate amount of reserves established by Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations for the account of the U.S. Domiciled Obligors.
U.S. Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one month interest period as of such day, plus 1.0%; provided, that in no event shall the U.S. Base Rate be less than zero.
U.S. Base Rate Loan: a U.S. Loan that bears interest based on the U.S. Base Rate.
U.S. Billed Accounts Formula Amount: (a) 90% of the Value of U.S. Eligible Accounts owing by Investment Grade Account Debtors, plus (b) 85% of the Value of U.S. Eligible Accounts owing by other Account Debtors; provided, that such percentages shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%. The amounts included in the computation of the U.S. Billed Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.
U.S. Borrower Agent: as defined in Section 4.4.
U.S. Borrowers: (a) the Initial U.S. Borrowers and (b) each other Domestic Subsidiary that after the Closing Date has executed a supplement or joinder to this Agreement in accordance with Section 10.1.9 and has satisfied the other requirements set forth in Section 10.1.9 in order to become a U.S. Borrower.
U.S. Borrowing Base: on any date of determination and based on the most recent U.S. Borrowing Base Report (as it may be adjusted hereunder), an amount equal to the lesser of (a) the aggregate U.S. Commitments; or (b) the sum of (i) the U.S. Billed Accounts Formula Amount, plus (ii) the U.S. Unbilled Accounts Formula Amount, plus (iii) the U.S. Cash Amount, minus (iv) the U.S. Availability Reserve.
U.S. Cash Amount: 100% of U.S. Eligible Pledged Cash not to exceed $20,000,000.
U.S. Cash Collateral Account: a demand deposit, money market or other account of a U.S. Borrower established by Agent at Bank of America or such other financial institution as Agent may select in its Permitted Discretion, which account shall be subject to a Lien in favor of Agent and exclusive control securing the U.S. Facility Obligations.
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U.S. Commitment: for any U.S. Lender, its obligation to make U.S. Loans and to participate in U.S. LC Obligations up to the maximum principal amount shown on Schedule 1.1(a), as hereafter modified pursuant to Section 2.1.7 or an Assignment to which it is a party. “U.S. Commitments” means the aggregate amount of all U.S. Lenders’ U.S. Commitments. As of the FirstSecond Amendment Effective Date, the aggregate amount of the U.S. Commitments is $65,000,00085,000,000.
U.S. Commitment Termination Date: the earliest to occur of (a) the Maturity Date; (b) the date on which U.S. Borrowers terminate the U.S. Commitments pursuant to Section 2.1.4; or (c) the date on which the U.S. Commitments are terminated pursuant to Section 11.2.
U.S. Domiciled Obligor: each U.S. Borrower and each Domestic Subsidiary now or hereafter party hereto as a Guarantor, and “U.S. Domiciled Obligors” means all such Persons, collectively.
U.S. Dominion Account: each account established by any of the U.S. Borrowers at Bank of America or another bank acceptable to Agent, over which Agent shall have exclusive control for withdrawal purposes.
U.S. Eligible Account: an Account owing to a U.S. Borrower from the rendition of services that arises in the Ordinary Course of Business, is payable in Dollars or Canadian Dollars, has been invoiced and is deemed by Agent, in its Permitted Discretion, to be a U.S. Eligible Account. Without limiting the foregoing, no Account shall be a U.S. Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor are not U.S. Eligible Accounts under the foregoing clause; (c) when aggregated with other Eligible Accounts owing by the Account Debtor and its Affiliates to the Borrowers, it exceeds 20% of the Borrowers’ aggregate Eligible Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time, provided, that for BP Exploration Operating Company Limited and Royal Dutch Shell plc, such concentration limit shall instead be 40%), but ineligibility shall be limited to the amount of such excess; (d) it does not conform with a covenant or representation herein relating to Accounts; (e) it is owing by a creditor or supplier, or is otherwise subject to offset, counterclaim, dispute, deduction, discount (other than customary discounts for prompt payment in the Ordinary Course of Business), recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor from which the Account Debtor has not emerged (unless the payment of such Accounts from the Account Debtor is guaranteed in a manner and by a Person reasonably acceptable to Agent); or the Account Debtor has failed, has suspended (for more than 15 consecutive Business Days) or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is the target of any Sanction or on any specially designated nationals list maintained by OFAC; or the U.S. Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process (provided, however that Accounts from customers in bankruptcy where Agent, after being notified thereof, shall have determined in its Permitted Discretion that the timely payment and collection of such Account will not be impaired, shall not be excluded solely by reason of this clause (f)); (g) the Account Debtor is not organized under or has its principal offices or assets outside an Eligible Account Debtor Jurisdiction applicable to such U.S. Borrower, unless the Account is supported by (i) a letter of
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credit, guaranty or other credit support reasonably acceptable to Agent or (ii) credit insurance reasonably satisfactory and assigned to Agent, provided, that Agent may, in its Permitted Discretion, permit U.S. Borrowers to include up to $5,000,000 in otherwise Eligible Accounts owing by Investment Grade Account Debtors as eligible hereunder notwithstanding that such Account Debtors do not satisfy this clause (g); (h) it is owing by a Governmental Authority, unless the Account Debtor is the United States or any State thereof or any department, agency or instrumentality thereof and the Account has been assigned to Agent in compliance with the federal Assignment of Claims Act or relevant state procedure respecting perfection in government accounts (or if no relevant state procedure exists Agent otherwise has a perfected security interest in such Account); (i) it is not subject to a duly perfected, first priority Lien in favor of Agent or is subject to any other Lien (in each case other than Liens permitted under Section 10.2.2(c) and (d)); (j) the services giving rise to it have been rejected or otherwise disputed by the Account Debtor (but only to the extent of such rejection or dispute); (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended or the Account Debtor has made a partial payment; (m) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, bill-and-hold, sale or return, sale on approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes; (n) it (i) represents a progress billing (it being understood and agreed that Dayrate Billings do not constitute progress xxxxxxxx), except that this clause (i) shall not render task-based xxxxxxxx ineligible where the relevant task is complete and the Account therefor is fully earned and entitled to be invoiced, (ii) constitutes retainage, except to the extent that the relevant project is complete and the retainage is final, due and owing with the conditions to its release, and acceptance of the work by the Account Debtor, fully satisfied, or (iii) relates to services for which a performance, surety or completion bond or similar assurance has been issued (whether or not constituting Permitted Debt), except that this clause (iii) shall not exclude Accounts from completed bonded projects where the services are complete and accepted by the Account Debtor and the bond therefor cannot be drawn; provided, that the aggregate amount of Accounts included as Eligible Accounts due to the exceptions in this clause (n) shall not exceed $5,000,0007,500,000 at any time (on a combined basis with clause (n) of the definition of U.K. Eligible Account); (o) it is a credit card sale or an amount due from a credit card issuer or processor; (p) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; or (q) it arises from a contract served by a Vessel (or other equipment including remote operated vehicles, intervention riser systems, subsea intervention lubricators, riserless open water abandonment modules and trenchers) that (i) has been arrested and not released, (ii) becomes the subject of a Lien that is not a Permitted Lien, (iii) is in a war zone requiring the suspension of Vessel (or other equipment) operations, (iv) fails to receive, renew or be granted the consent of a Governmental Authority necessary for its operation or (v) is otherwise incapable of generating Accounts and earnings, in each case to the extent that any of the foregoing could reasonably be expected to adversely affect the collectability of such Account in any material respect. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.
U.S. Eligible Pledged Cash: on any date of determination, the aggregate amount of cash of U.S. Borrowers as of such date that is on deposit in a U.S. Eligible Pledged Cash Account and subject to a duly perfected first priority Lien in favor of Agent.
U.S. Eligible Pledged Cash Account: a special purpose Deposit Account established by U.S. Borrowers at Bank of America and designated by U.S. Borrowers and Agent as an “U.S.
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Eligible Pledged Cash Account” and over which Agent has, in accordance with Section 8.3.2, exclusive control for withdrawal purposes.
U.S. Facility Collateral: Collateral that now or hereafter secures (or is intended to secure) any of the U.S. Facility Obligations, including Property of the Guarantors pledged to secure the U.S. Facility Obligations under their guarantee of the U.S. Facility Obligations.
U.S. Facility Obligations: all Obligations of the U.S. Domiciled Obligors (including, for the avoidance of doubt, the Obligations of the U.S. Domiciled Obligors as guarantors of the U.K. Facility Obligations).
U.S. Facility Secured Parties: Agent, any Issuing Bank of U.S. Letters of Credit, U.S. Lenders and Secured Bank Product Providers of Bank Products to U.S. Domiciled Obligors, including U.K. Facility Secured Parties.
U.S. Government Securities Business Day: any Business Day, except any day on which the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY is not open for business because the day is a legal holiday under New York law or U.S. federal law.
U.S. LC Conditions: the following conditions necessary for issuance of a U.S. Letter of Credit: (a) each of the conditions set forth in Section 6.2; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline and U.S. Revolver Usage does not exceed the U.S. Borrowing Base; (c) the U.S. Letter of Credit and payments thereunder are denominated in Dollars or other currency satisfactory to Agent and Issuing Bank; and (d) the purpose and form of the proposed U.S. Letter of Credit are satisfactory to Agent and Issuing Bank in their discretion.
U.S. LC Documents: all documents, instruments and agreements (including requests and applications) delivered by any U.S. Borrower or any other Person to Issuing Bank or Agent in connection with any U.S. Letter of Credit.
U.S. LC Obligations: the sum of (a) all amounts owing by a U.S. Borrower for drawings under U.S. Letters of Credit; and (b) the Stated Amount of all outstanding U.S. Letters of Credit.
U.S. Lender: any Lender that has issued a U.S. Commitment.
U.S. Letter of Credit: any standby or documentary letter of credit issued by an Issuing Bank for the account of a U.S. Domiciled Obligor.
U.S. Loan: a Loan made by a U.S. Lender to a U.S. Borrower pursuant to Section 2.1, which Loan shall be denominated in Dollars and shall be either a U.S. Base Rate Loan or a Term SOFR Loan, in each case as selected by the Borrower Agent, and including any U.S. Swingline Loan or U.S. Protective Advance.
U.S. Overadvance: as defined in Section 2.1.5(a).
U.S. Person: “United States Person” as defined in Section 7701(a)(30) of the Code.
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U.S. Protective Advances: as defined in Section 2.1.6.
U.S. Rent and Charges Reserve: a reserve equal to three months’ rent and other charges that could reasonably be expected to be payable to the landlord of the U.S. Borrowers’ headquarters location, unless such Person has executed a Lien Waiver reasonably acceptable to Agent.
U.S. Reimbursement Date: as defined in Section 2.2.2.
U.S. Revolver Usage: (a) the aggregate amount of outstanding U.S. Loans; plus (b) the aggregate Stated Amount of outstanding U.S. Letters of Credit (except, for purposes of determining U.S. Availability only, to the extent Cash Collateralized by the U.S. Borrowers pursuant to Section 2.2.3(a)).
U.S. Swingline Loan: any Borrowing of U.S. Base Rate Loans funded with Agent’s funds, until such Borrowing is settled among U.S. Lenders or repaid by U.S. Borrowers.
U.S. Tax Compliance Certificate: as defined in Section 5.9.2(b)(iii).
U.S. Unbilled Accounts Formula Amount: 80% of the Value of U.S. Unbilled Eligible Accounts; provided, that (a) the aggregate amount of U.K. Unbilled Eligible Accounts and U.S. Unbilled Eligible Accounts included in the Global Borrowing Base shall not exceed $25,000,00030% of the Commitments at any time and (b) such advance rate percentage shall be reduced by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%. The amounts included in the computation of the U.S. Unbilled Accounts Formula Amount shall be expressed in Dollars and in any case in which an amount is originally denominated in a currency other than Dollars, such amount shall be the Dollar Equivalent thereof.
U.S. Unbilled Eligible Accounts: any Account owing to a U.S. Borrower which would qualify as a “U.S. Eligible Account” except that the invoice with respect thereto has not yet been submitted to the Account Debtor, so long as such Accounts have not been unbilled for more than 30 consecutive days following the creation of the unbilled Account; provided, that for Royal Dutch Shell plc, such time period shall instead be 45 consecutive days.
U.S. Unused Line Fee Rate: a per annum rate equal to (a) 0.50%, if average daily U.S. Revolver Usage was 50% or less of the U.S. Commitments during the preceding calendar month, or (b) 0.375%, if average daily U.S. Revolver Usage was more than 50% of the U.S. Commitments during such month.
Value: for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person.
(a)any value added tax imposed by the Value Added Tax Act 1994 (U.K.);
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(b)any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
(c)any other Tax of a similar nature, whether imposed in the U.K. or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.
Vessel: the whole of any floating structure, watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, owned, chartered (whether by time, demise or bareboat charter) or acquired by Helix or its Subsidiaries.
Write-Down and Conversion Powers: (a) the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule; or (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any U.K. Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
. Under the Loan Documents (except as otherwise specified therein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP (or, as the context may indicate, IFRS) applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date, except for any change required or permitted by GAAP (or, as the context may indicate, IFRS) after the Closing Date if Borrowers’ certified public accountants concur in such change and the change is disclosed to Agent and, if reasonably requested by Agent or the Required Lenders, the relevant provisions of the Loan Documents are amended in a manner reasonably satisfactory Agent and the Required Lenders to take into account the effects of the change. Notwithstanding the foregoing, if at any time any change occurs after the Closing Date in GAAP (or, as the context may indicate, IFRS) or in the application thereof on the computation of any financial ratio or financial requirement, or compliance with any covenant, set forth in any Loan Document, and Borrowers or Agent (or Required Lenders) shall so request (regardless of whether any such request is given before or after such change), Agent, the Lenders and Borrowers will negotiate in good faith to amend (subject to the approval of the Required Lenders) such ratio, requirement or covenant to preserve the original intent thereof in light of such change in GAAP (or, as the context may indicate, IFRS); provided, that until so amended, (a) such ratio, requirement or covenant shall continue to be computed in accordance with GAAP prior to such change therein and (b) if requested by Agent or any Lender, Borrowers shall provide to Agent or such Lender financial statements and other documents required under this Agreement which include a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein the amount of any Debt under GAAP with respect to Capital Lease shall be determined in accordance with the
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definition of Capital Lease. In addition, all accounting terms shall be interpreted, all accounting determinations shall be made and all financial statements shall be prepared without giving effect to any election under FASB Accounting Standards Codification Topic 825, Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Debt at “fair value”, as defined therein.
. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York: “Account Debtor,” “Chattel Paper,” “Commercial Tort Claim,” “Commodity Account”, “Document,” “Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right” and “Supporting Obligation.”
. The rules of construction and interpretation included in this Section apply to all Loan Documents save that clauses (i) through (p) (both inclusive) are applicable to each Loan Document where it relates to a Person incorporated or formed or having its Centre of Main Interests in Scotland or otherwise relates to assets, rights or interests located in Scotland or otherwise governed by Scots law. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” mean “including, without limitation”, “or” includes “any/or”, and the rule of ejusdem generis does not apply. Section titles appear as a matter of convenience only and will not affect the interpretation of a Loan Document. Reference to any (a) law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) document, instrument or agreement includes any amendment, extension, supplement, waiver, replacement and other modification thereto (to the extent permitted by the Loan Documents and except as otherwise specified herein); (c) section means, unless the context otherwise requires, a section of the applicable document; (d) exhibit or schedule means, unless the context otherwise requires, an exhibit or schedule to the applicable document, which is thereby incorporated by reference; (e) Person includes its permitted successors and assigns; (f) time of day means the time at Agent’s notice address under Section 14.3.1; (g) except as otherwise qualified, discretion of Agent, Issuing Bank or any Lender means the sole and absolute discretion of such Person exercised at any time; (h) except as otherwise set forth herein, in the determination of any date required for performance of deliveries, if such date is calculated to be a date other than a Business Day, such delivery or performance shall be due on the next succeeding Business Day; (i) a reference to a receiver, administrative receiver, administrator or other similar person includes, without limitation, a Scottish receiver with the powers conferred under Schedule 2 to the Insolvency Act 1986, a judicial factor or any person performing the same function of each of the foregoing; (j) reference to forfeiture shall include without limitation, irritancy; (k) reference to assigns and assignments include without limitation, assignees and assignations respectively; (l) reference to judgment and distress include, without limitation, decree and diligence respectively; (m) reference to premium shall include, without limitation, a premium, grassum or other financial incentive; (n) a reference to surety shall include, without limitation, guarantor; (o) reference to disposal shall include a sale, disposition, conveyance, transfer, assignation, grant, lease,
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declaration of trust, or other disposal; and (p) a reference to set off includes rights of retention, claims of compensation and right to balance accounts on insolvency. Any determination (including calculation of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to Agent (and not necessarily calculated in accordance with GAAP). Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by any Indemnitee under a Loan Document. No provision of a Loan Document shall be construed against a party by reason of it having, or being deemed to have, drafted the provision. Reference to an Obligor’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. With respect to the delivery of any projection or other forecasts, Agent, Issuing Bank and Lenders hereby acknowledge that (i) such information is forward looking and uncertain in nature, (ii) no assurances or representations or warranties may be made or given that such projections or forecasts will be achieved, and (iii) actual results might vary and any such variance might be material.
. Any reference herein to a merger, transfer, consolidation, amalgamation, assignation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company or limited partnership, or an allocation of assets to a series of any such entity (or the unwinding of such a division or allocation) as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer or similar term, as applicable, to, of or with a separate Person. Any division of Person shall constitute a separate Person hereunder.
. All references in the Loan Documents to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts shall be denominated in Dollars, unless expressly provided otherwise. The Dollar Equivalent of any amounts denominated or reported under a Loan Document in a currency other than Dollars shall be determined by the Agent on a daily basis based on the current Spot Rate. Each Borrower shall report Value and other Borrowing Base components to the Agent in the currency invoiced by such Borrower or shown in such Borrower’s financial records, and unless expressly provided otherwise, Helix shall deliver consolidated financial statements and calculate financial covenants in Dollars. Notwithstanding anything herein to the contrary, if any Obligation is funded and expressly denominated in a currency other than Dollars, Borrowers shall repay such Obligation in such other currency.
. If, for purposes of obtaining judgment in any court, it is necessary to convert a sum from the currency provided under a Loan Document (“Agreement Currency”) into another currency, the Spot Rate shall be used as the rate of exchange. Notwithstanding any judgment in a currency (“Judgment Currency”) other than the Agreement Currency, a Borrower shall discharge its
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obligation in respect of any sum due under a Loan Document only if, on the Business Day following receipt by Agent of payment in the Judgment Currency, Agent can use the amount paid to purchase the sum originally due in the Agreement Currency. If the purchased amount is less than the sum originally due, such Xxxxxxxx agrees, as a separate obligation and notwithstanding any such judgment, to indemnify Agent and Lenders against such loss. If the purchased amount is greater than the sum originally due, Agent shall return the excess amount to such Borrower (or to the Person legally entitled thereto).
. Without prejudice to the generality of any provision of this Agreement and in each Loan Document, where it relates to a company incorporated under the laws of Luxembourg, a reference to:
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. All computations of interest for U.S. Base Rate Loans (including pursuant to clause (c) of the definition of U.S. Base Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days. Each determination by Agent of any interest, fee, interest rate or amounts payable hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. A certificate as to amounts payable by any Borrower under Section 3.4, 3.6, 3.7, 3.9 or 5.8 that is submitted to Borrower Agent by Agent or the affected Lender shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party within 10 days following receipt of the certificate.
. Obligors shall pay all Claims promptly upon written request (including by email), subject to Section 14.2. Obligors shall also reimburse Agent for all reasonable and documented legal, accounting, appraisal, consulting, and other fees and expenses incurred by it in connection with (a) negotiation and preparation of Loan Documents, including any modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) subject to the limits of Section 10.1.1(b), any examination or appraisal with respect to any Obligor or Collateral by Agent’s personnel or a third party. All legal, accounting and consulting fees shall be charged to Obligors by Agent’s professionals at their then applicable hourly rates, regardless of any alternative fee arrangements that Agent, any Lender or any of their Affiliates may have with such professionals that otherwise might apply to any other transaction. Obligors acknowledge that
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counsel may provide Agent with a benefit (such as a discount, credit or accommodation for other matters) based on counsel’s overall relationship with Agent, including fees paid hereunder. If, for any reason (including inaccurate information in Borrower Materials), it is determined that a higher Applicable Margin should have applied to a period than was actually applied, then the proper margin shall be applied retroactively and Borrower(s) of each affected Borrower Group shall immediately pay to Agent, for the ratable benefit of Lenders, an amount equal to the difference between the amount of interest and fees that would have accrued using the proper margin and the amount actually paid. All amounts payable by Obligors under this Section shall be due within five days of written demand therefor (including by email).
. If any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to a Relevant Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to determine or charge interest rates based on a Relevant Rate or to purchase or sell, or take deposits of, any Agreed Currency in the applicable intrabank market, then, on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue such Relevant Rate Loans or to convert Base Rate Loans to Relevant Rate Loans shall be suspended until such Lender notifies Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of such notice, (a) U.S. Borrowers shall, in the case of all U.S. Loans bearing interest based on the Relevant Rate, prepay or, if applicable, convert all such Relevant Rate Loans of such Lender to U.S. Base Rate Loans, in each case, immediately, or on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Relevant Rate Loans to such day, and (b) U.K. Borrowers shall, in the case of all U.K. Loans bearing interest based on a Relevant Rate, prepay all such Relevant Rate Loans, in each case, immediately or on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Relevant Rate Loans to such day. Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.
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then, on a date and time determined by Agent (any such date, “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (b) above, no later than the Term SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment, for any payment period for interest calculated that can be determined by Agent, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document (“Term SOFR Successor Rate”). If the Term SOFR Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest will be payable on a monthly basis.
Notwithstanding anything to the contrary herein, (x) if Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date or (y) if the events or circumstances of the type described in clauses (a) or (b) above have occurred with respect to the Term SOFR Successor Rate then in effect, then in each case, Agent and Borrower Agents may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Term SOFR Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for such alternative benchmarks in similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the U.S. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for such
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benchmarks in similar U.S. dollar denominated credit facilities syndicated and agented in the U.S., which adjustment or method for calculating such adjustment shall be published on an information service selected by Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Term SOFR Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Agent shall have posted such proposed amendment to all Lenders and Borrower Agents unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent written notice that such Required Lenders object to such amendment.
Agent will promptly (in one or more notices) notify the Borrower Agents and each Lender of the implementation of any Term SOFR Successor Rate. Any Term SOFR Successor Rate shall be applied in a manner consistent with market practice; provided, that to the extent such market practice is not administratively feasible for Agent, such Term SOFR Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent. Notwithstanding anything else herein, if at any time any Term SOFR Successor Rate as so determined would otherwise be less than zero, the Term SOFR Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
Thereafter, (x) the obligation of the Lenders to make or maintain such Loans in the affected currencies, as applicable, or to convert U.K. Base Rate Loans to Relevant Rate Loans, shall be suspended in each case to the extent of the affected Relevant Rate Loans or Interest Period or determination date(s), as applicable, and (y) in the event of a determination described in the preceding sentence with respect to any component of the U.K. Base Rate, the utilization of such component in determining the U.K. Base Rate shall be suspended, in each case until Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.6.3(a), until Agent upon instruction of the Required Lenders) revokes such notice.
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Upon receipt of such notice, (i) the U.K. Borrowers may revoke any pending request for a Borrowing of, or conversion to Relevant Rate Loans, or Borrowing of, or continuation of Relevant Rate Loans to the extent of the affected Alternative Currency or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Borrowing of U.K. Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) any outstanding affected Relevant Rate Loans, at the U.K. Borrower Agent’s election, shall either (A) be converted into a Borrowing of U.K. Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Relevant Rate Loan immediately at the end of the applicable Interest Period or (B) be prepaid in full immediately at the end of the applicable Interest Period; provided that if no election is made by the U.K. Borrower Agent by the last day of the current Interest Period, the U.K. Borrower Agent shall be deemed to have elected clause (A) above.
or if the events or circumstances of the type described in Section 3.6.3(b)(i), (ii) or (iii) have occurred with respect to the Alternative Currency Successor Rate then in effect, then, Agent and the U.K. Borrower Agent may amend this Agreement solely for the purpose of replacing the Relevant Rate for an Alternative Currency or any then current Alternative Currency Successor Rate for an Alternative Currency in accordance with this Section 3.6.3 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and
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denominated in such Alternative Currency for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative Currency for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Agent from time to time in its reasonable discretion and may be periodically updated (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, an “Alternative Currency Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Agent shall have posted such proposed amendment to all Lenders and the U.K. Borrower Agent unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent written notice that such Required Lenders object to such amendment.
Agent will promptly (in one or more notices) notify the U.K. Borrower Agent and each Lender of the implementation of any Alternative Currency Successor Rate.
Any Alternative Currency Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Agent, such Alternative Currency Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent.
Notwithstanding anything else herein, if at any time any Alternative Currency Successor Rate as so determined would otherwise be less than zero, the Alternative Currency Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of an Alternative Currency Successor Rate, Agent will have the right to make Alternative Currency Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Alternative Currency Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, Agent shall post each such amendment implementing such Alternative Currency Conforming Changes to the U.K. Borrower Agent and the Lenders reasonably promptly after such amendment becomes effective.
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and the result thereof shall be to increase the cost to a Lender of making or maintaining any Loan or its Commitment, or converting to or continuing any interest option for a Loan, or to increase the cost to a Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by a Lender or Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank, Borrowers will pay to it such additional amount(s) as will compensate it for the additional costs incurred or reduction suffered. Such Lender or Issuing Bank shall deliver to Borrowers the certificate contemplated by Section 3.3.
. If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.7, or if any Borrower is required to pay any Indemnified Taxes or additional amounts with respect to a Lender under Section 5.8, then at the request of Borrower Agent, such Lender shall use reasonable efforts to designate or assign its obligations hereunder to a different Lending Office, if, in the judgment of such Lender, such designation or assignment would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, would not subject the Lender to any unreimbursed cost or expense, and would not otherwise be disadvantageous to it or unlawful. Borrowers of each affected Borrower Group shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
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. If for any reason (a) any Borrowing, conversion or continuation of a Term SOFR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn but other than in respect of a Defaulting Lender), (b) any repayment or conversion of a Term SOFR Loan occurs on a day other than the end of its Interest Period or tenor, (c) Borrowers of any Borrower Group fail to repay a Term SOFR Loan when required, or (d) a Lender (other than a Defaulting Lender) is required to assign a Term SOFR Loan prior to the end of its Interest Period or tenor pursuant to Section 13.4, then Borrowers of such Borrower Group shall pay to Agent its customary administrative charge and to each Lender all losses, expenses and fees arising from redeployment of funds or termination of match funding.
. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (“maximum rate”). If Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the Obligations of the Borrower Group to which such excess interest relates or, if it exceeds such unpaid principal, refunded to such Borrower Group. In determining whether the interest contracted for, charged or received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread (in equal or unequal parts) the total amount of interest throughout the contemplated term of the Obligations hereunder.
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. Each Borrowing of Term SOFR Loans when made shall be in a minimum amount of $1,000,000, plus an increment of $100,000 in excess thereof. No more than six Borrowings of Term SOFR Loans may be outstanding at any time, and all Term SOFR Loans having the same length and beginning date of their Interest Periods shall be aggregated together and considered one Borrowing for this purpose. Upon determining Term SOFR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.
. Each U.S. Borrower hereby designates Helix (“U.S. Borrower Agent”), and each U.K. Borrower hereby designates Well Ops U.K. (“U.K. Borrower Agent”), as its representative and agent for all purposes under the Loan Documents, including requests for and receipt of Loans and Letters of Credit, designation of interest rates, delivery or receipt of Communications, delivery of Borrower Materials, payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender. Each Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon any Communication (including any notice of borrowing) delivered by or to a Borrower Agent on behalf of any Borrower. Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal exclusively with any Borrower Agent for all purposes under the Loan Documents. Each Obligor agrees that any Communication, delivery, action, omission or undertaking by a Borrower Agent shall be binding upon and enforceable against such Obligor.
. The Loans, LC Obligations and other Obligations constitute one general obligation of Borrowers, jointly and severally, and are secured by Agent’s Lien on all Collateral; provided, that Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower.
. On the effective date of the termination of all Commitments, the Obligations shall be immediately due and payable, and each Secured Bank Product Provider may terminate its Bank Products. Until Full Payment of the Obligations, all undertakings of Obligors contained in the Loan Documents shall continue, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents. Agent shall not be required to terminate its Liens unless it receives Cash Collateral or a written agreement, in each case satisfactory to it, protecting Agent and Lenders from dishonor or return of any Payment Item previously applied to the Obligations. Sections 2.2, 3.4, 3.6, 3.7, 3.9, 4.1.3(c), 5.4, 5.8, 5.9, Section 12, 14.2, this Section, and each indemnity or waiver given by an Obligor or Lender in any Loan Document, shall survive any assignment by
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Agent, Issuing Bank or any Lender of rights or obligations hereunder, termination of any Commitment, and any repayment, satisfaction, discharge or Full Payment of any Obligations.
. All payments of Obligations shall be made in the applicable Agreed Currency, without offset, counterclaim or defense of any kind, free and clear of (and without deduction for) any Taxes, and in immediately available funds, not later than 12:00 noon (Local Time) on the due date. Any payment after such time shall be deemed made on the next Business Day. Any payment of a Term SOFR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Sections 3.1.1(c) and 3.9. Agent shall have the continuing, exclusive right to apply and reapply payments and proceeds of Collateral against the Obligations, at Agent’s discretion, but whenever possible any prepayment shall be applied to Base Rate Loans before Term SOFR Loans.
. Loans may be prepaid from time to time, without penalty or premium, pursuant to a Notice of Prepayment to Agent, delivered concurrently with prepayment of a Swingline Loan and at least two Business Days prior to prepayment of other Loans; provided, that no such notice shall be required for payments applied pursuant to Section 5.6 (subject to Section 3.9). All U.S. Loans shall be due and payable in full on the U.S. Commitment Termination Date and all U.K. Loans shall be due and payable in full on the U.K. Commitment Termination Date, in each case, unless payment is sooner required hereunder, and any Overadvance or Protective Advance shall be due and payable as provided in Sections 2.1.5 and 2.1.6. If any Disposition by Obligors includes Accounts, Obligors shall apply Net Proceeds to repay Loans equal to the greater of (a) the net book value (or fair market value, if higher) of such Accounts, or (b) the reduction in Borrowing Base resulting from the disposition.
. Obligations other than Loans, including LC Obligations and Claims, shall be paid by Obligors as provided in the Loan Documents or, if no payment date is specified, on demand.
. None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any payment by or on behalf of Obligors is made to Agent, Issuing Bank or any Lender, or if Agent, Issuing Bank or any Lender exercises a right of setoff, and any of such payment or setoff is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, Issuing Bank or a Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if such payment or setoff had not occurred.
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Amounts shall be applied to payment of each category of Obligations only after Full Payment of amounts payable from time to time under all preceding categories. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in each category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the provider fails to deliver
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the calculation within five days following request, Agent may assume the amount is zero. The allocations in this Section are solely to determine the priorities among Secured Parties and may be changed by agreement of affected Secured Parties without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Obligor, and no Obligor has any right to direct the application of payments or Collateral proceeds subject to this Section.
. The ledger balance in the U.S. Dominion Account of the U.S. Domiciled Obligors as of the end of a Business Day shall be applied to the U.S. Facility Obligations at the beginning of the next Business Day, during any Dominion Trigger Period. Subject to Section 10.1.13, the ledger balance in any U.K. Dominion Account of the U.K. Borrowers as of the end of a Business Day shall be applied to the U.K. Facility Obligations whether or not a Dominion Trigger Period exists. Any resulting credit balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers as long as no Event of Default exists, including by way of transfer to an operating account of the applicable Borrowers upon request.
. Agent shall maintain, in accordance with its customary practices, loan account(s) evidencing the Debt of Borrowers within each Borrower Group hereunder. Any failure of Agent to record anything in a loan account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder. Entries in a loan account shall, absent manifest error, be presumptive evidence of the information contained therein. If information in a loan account is provided to or inspected by or on behalf of a Borrower, the information shall be conclusive and binding on Borrowers for all purposes absent manifest error, except to the extent Borrower Agent notifies Agent in writing within 30 days of specific information subject to dispute.
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and having done so, that Lender shall be under no obligation pursuant to Section 5.8.6(b) above.
and in each case, the U.K. Xxxxxxxx has notified that Xxxxxx in writing, that Xxxxxx and the U.K. Borrower shall co-operate in completing any additional procedural formalities necessary for that U.K. Borrower to obtain authorization to make that payment without a Tax Deduction.
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If a New Lender fails to indicate its status in accordance with this Section 5.9.1(b), then such New Lender shall be treated for the purposes of this Agreement (including by each U.K. Borrower) as if it is not a U.K. Qualifying Lender until such time as it notifies the Agent which category of U.K. Qualifying Lender applies (and the Agent, upon receipt of such notification, shall inform the U.K. Borrower Agent). For the avoidance of doubt, the documentation which a Lender executes on becoming a party to this Agreement as a Lender shall not be invalidated by any failure of a New Lender to comply with this Section 5.9.1(b).
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The above limitation shall not apply to any amounts borrowed by, or made available to, in any form whatsoever, the Luxembourg Guarantor or any of its direct or indirect present or future subsidiaries under any Loan Document.
. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund the initial requested Loan or otherwise make the initial extension of credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied or waived:
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. Agent, Issuing Bank and Lenders shall not be required to make any credit extension hereunder (including funding any Loan, arranging any Letter of Credit, or granting any other accommodation to or for the benefit of any Obligor), if the following conditions are not satisfied on such date and upon giving effect thereto:
Each request (or deemed request) by a Borrower for any credit extension shall constitute a representation by Obligors that the foregoing conditions are satisfied on the date of such request and on the date of the credit extension.
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. To secure the prompt payment and performance of the Obligations, each U.S. Domiciled Obligor hereby grants to Agent, for the benefit of Secured Parties, a continuing Lien on all of the following Property of such U.S. Domiciled Obligor, whether now owned or hereafter acquired, and wherever located:
provided, that in no event shall the above-described Property include any Excluded Property; provided, further, that Excluded Property shall not include any proceeds, products, substitutions
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or replacements of Excluded Property, including monies due or to become due to a U.S. Domiciled Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).
To the extent that any of the above-described Property is not subject to the UCC, each U.S. Domiciled Obligor hereby pledges and collaterally assigns all of such U.S. Domiciled Obligor’s right, title, and interest in and to such Property, whether now owned or hereafter acquired, to Agent for the benefit of the Secured Parties to secure the payment and performance of the Obligations to the full extent that such a pledge and collateral assignment is possible under the relevant law and provided that such pledge is without prejudice to any rights charged, pledged or assigned pursuant to any U.K. Security Document.
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. The Lien on Collateral granted hereunder and under the other Loan Documents is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of Obligors relating to any Collateral. In no event shall any Obligor’s grant of a Lien under any Loan Document secure its Excluded Swap Obligations.
. All Liens granted to Agent under the Loan Documents are for the benefit of the Secured Parties. Promptly upon written request (including by email), Obligors shall deliver such instruments and agreements, and shall take such actions, as Agent deems reasonably necessary under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Obligor authorizes Agent to file any financing statement that approximately describes the Collateral of such Obligor and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral.
. By the 25th day of each month, Borrower Agents shall deliver to Agent (and Agent shall promptly deliver the same to Lenders) a Borrowing Base Report for the U.S. Borrowing Base, the U.K. Borrowing Base and the Global Borrowing Base as of the close of business of the previous month; provided, that (i) in the case of the Borrowing Base Reports determined as of the close of business for the months of January, March, June and September of each year, such Borrowing Base Reports shall be delivered by Borrower Agents to Agent by the last calendar day of the subsequent month (instead of the 25th day of such subsequent month) and (ii) if a Borrowing Base Reporting Trigger Period is in effect Borrower Agents shall, no later than Wednesday following the end of each calendar week, deliver a Borrowing Base Report prepared as of the close of business of such previous week (except that any ineligible accounts may be calculated as of the prior month end). All information (including calculation of Availability) in a Borrowing Base Report shall be certified by Borrowers. Agent may from time to time in its Permitted Discretion adjust such report (a) to reflect Agent’s reasonable estimate of declines in value of Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Accounts; and (c) to the extent any information or calculation does not comply with this Agreement.
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. Borrower Agents may from time to time request the release of Accounts (and the related contracts or portion thereof and, in respect of any U.K. Domiciled Obligor, the applicable Vessel, equipment and similar related Collateral) pledged to secure the Obligations in connection with secured financings for Vessels and their related equipment otherwise permitted under this Agreement. In
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respect of any Accounts (and such other Collateral) owed to any U.K. Domiciled Obligor, any such release shall be at the discretion of the Agent. In respect of any other Accounts (and the related contracts or portion thereof), Agent shall release such Accounts (and the related contracts or portion thereof) so long as no Default or Event of Default exists before or after giving effect to any such release, and each of the following other conditions have been satisfied in Agent’s reasonable discretion:
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. Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Xxxxxxx’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may (in its Permitted Discretion), without notice and in either its or an Obligor’s name, but at the cost and expense of Obligors:
. To induce Agent and Lenders to enter into this Agreement and to make available the Commitments, Loans and Letters of Credit, each Obligor represents and warrants that:
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(a)The consolidated and consolidating balance sheets, and related statements of income, cash flow and shareholders equity, of Obligors and Subsidiaries that have been and are hereafter delivered to Agent and Lenders, are prepared in accordance with GAAP (or IFRS, as applicable), and fairly present in all material respects the financial positions and results of operations of Obligors and Subsidiaries at the dates and for the periods indicated, subject to the lack of footnotes and year end audit adjustments, if any, in the case of unaudited interim financial statements.
(b)All projections delivered from time to time to Agent and Xxxxxxx have been prepared in good faith, based on assumptions believed to be reasonable in light of the circumstances at such time (it being understood that such projections are subject to significant uncertainties and contingences, many of which are beyond the control of the Obligors, that no assurance is given that any particular projection will be realized, that actual results may differ and that such differences may be material).
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(c)Since December 31, 2020, there has been no change in the condition, financial or otherwise, of any Obligor or Subsidiary that could reasonably be expected to have a Material Adverse Effect.
(d)No financial statement delivered to Agent or Lenders hereunder contains any untrue statement of a material fact, nor fails to disclose any material fact necessary to make such statement not materially misleading as of the applicable delivery period (it being understood that this clause (d) does not apply to projections).
(e)Obligors, on a consolidated basis, are Solvent.
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. None of the written reports, financial statements, certificates or other written information (other than any projections, pro forma financial information, budgets, and other forward-looking information and information of a general economic or industry-specific nature) furnished by or at the direction of any Obligor to Agent and the Lenders in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished), when taken as a whole, contains, as of the date furnished, any material misstatement of fact or omits to state any material fact necessary to make the statements therein not materially misleading in light of the circumstances under which such statements were made. To the Obligors’ knowledge, there is no fact or circumstance that any Obligor has failed to disclose to Agent in writing that could reasonably be expected to have a Material Adverse Effect.
. As long as any Commitment or Obligations are outstanding, each Obligor shall, and shall (other than in the case of the covenants set forth in Sections 10.1.1, 10.1.2 and 10.1.3) cause each Subsidiary to:
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. As long as any Commitment or Obligations are outstanding, each Obligor shall not, and shall cause each Subsidiary not to:
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(v)to the extent constituting a Distribution, Helix may pay, repay, repurchase or redeem the Senior Notes on or within 90 days of their scheduled maturity date or the Subject Earnout on or within 20 Business Days of the Subject Payment Due Date (with any of the foregoing prior to such date(s), to the extent constituting a Distribution, governed by clause (iv) above) and may make customary payments in cash in lieu of fractional shares in connection with the conversion to or exchange thereof for Equity Interests, provided, that, in each case, the total amount of such cash payments shall not exceed the aggregate remaining principal amount, accrued interest, fees and expenses for the applicable Senior Notes or the Subject Earnout (and, other than in the case of customary payments made in lieu of fractional shares, any amount in excess thereof must be otherwise permitted under clause (iv) above).
For the avoidance of doubt, nothing contained in this Section 10.2.3 or otherwise in this Agreement or any other Loan Document is intended to prohibit any Subject Payment to the extent paid in Equity Interests in Helix that are not Disqualified Equity Interests so long as the same does not result in a Change of Control.
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Notwithstanding the foregoing, the Obligors shall not Dispose of the Vessels Q4000, Q5000, Well Enhancer and HP1; provided, that, for the avoidance of doubt, the same shall not prohibit Liens permitted under Section 10.2.2.
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. Each of the following shall be an “Event of Default” if it occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise:
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. If an Event of Default described in Section 11.1(j) occurs with respect to any Obligor, then to the extent permitted by Applicable Law, all Obligations (including Secured Bank Product Obligations only to the extent provided in applicable agreements) shall become automatically due and payable and all Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time:
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. Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of Obligors, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other Property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral. Each Obligor’s rights and interests under Intellectual Property shall inure to Agent’s benefit.
. At any time during an Event of Default, Agent, Issuing Bank, Lenders, and any of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by Agent, Issuing Bank, such Lender or such Affiliate to or for the credit or the account of an Obligor against the Obligations, whether or not Agent, Issuing Bank, such Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or are owed to a branch or office of Agent, Issuing Bank, such Lender or such Affiliate different from the branch or office holding such deposit or obligated on such indebtedness. The rights of Agent, Issuing Bank, each Lender and each such Affiliate under this Section are in addition to other rights and remedies (including other rights of setoff) that such Person may have.
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. Agent shall be entitled to rely, and shall be fully protected in relying, upon any Communication (including those by telephone, telex, telegram, telecopy, e-mail or other electronic means) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person. Agent shall have a reasonable and practicable amount of time to act on any Communication and shall not be liable for any delay in acting.
. Agent shall not be deemed to have knowledge of any Default or Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has received written notice from a Borrower or Required Lenders specifying the occurrence and nature thereof. If a Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly notify Agent and the other Lenders thereof in writing. Each Secured Party agrees that, except as otherwise provided in any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations (other than Secured Bank Product Obligations) or assert any rights relating to any Collateral. Agent is hereby authorized to file a proof of claim and vote claims for the Obligations in any proceeding under the Bankruptcy Code. At any foreclosure or other realization event with respect to the Collateral (including any 363 sale pursuant to the Bankruptcy Code), Agent shall be entitled to credit bid the Obligations and establish vehicles and procedures therefor.
. If any Secured Party obtains any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its ratable share of such Obligation, such Secured Party shall forthwith purchase from the other Secured Parties participations in the affected Obligation as are necessary to share the excess payment or reduction on a Pro Rata basis or in accordance with Section 5.5.2, as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Secured Party, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, if a Defaulting Lender obtains a payment or reduction of any Obligation, it shall immediately turn over the full amount thereof to Agent for application under Section 4.2.2 and it shall provide a written statement to Agent describing the Obligation affected by such payment or reduction. No Lender shall set off against a Deposit Account without Agent’s prior consent.
. EACH SECURED PARTY SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES AND ISSUING BANK INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS, ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE, PROVIDED THAT ANY CLAIM AGAINST AN AGENT INDEMNITEE RELATES TO
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OR ARISES FROM ITS ACTING AS OR FOR AGENT (IN THE CAPACITY OF AGENT). In Agent’s discretion, it may reserve for any Claims made against an Agent Indemnitee or Issuing Bank Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Secured Parties. If Agent is sued by any receiver, trustee or other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each Secured Party to the extent of its Pro Rata share.
. Agent shall not be liable to any Secured Party for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor, Lender or other Secured Party of any obligations under the Loan Documents. Agent does not make any express or implied representation, warranty or guarantee to Secured Parties with respect to any Obligations, Collateral, Liens, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to Secured Parties for any recitals, statements, information, representations or warranties contained in any Loan Documents or Borrower Materials; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Secured Party to ascertain or inquire into the existence of any Default or Event of Default, the observance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.
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. Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate in LC Obligations hereunder. Each Secured Party has made such inquiries as it feels necessary concerning the Loan Documents, Collateral and Obligors. Each Secured Party acknowledges and agrees that the other Secured Parties have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. No act by Agent, including any consent, amendment, acceptance of assignment or due diligence by Agent, shall be deemed to constitute a representation by Agent to any Secured Party as to any matter, including whether Agent has disclosed material information in its possession. Each Secured Party will, independently and without reliance upon any other Secured Party, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in taking or refraining from any action under any Loan Documents. Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Secured Party with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or its Affiliates. Each Lender represents and warrants that (a) the Loan Documents set forth the terms of a commercial lending facility, and (b) it is engaged in making, acquiring or holding commercial loans in the ordinary course, is sophisticated with respect to making such decisions and holding such loans, and is entering into this Agreement for the purpose of making, acquiring or holding commercial loans and providing other facilities as set forth herein, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument. Each Lender agrees not to assert any claim in contravention of the foregoing.
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. As a Lender, Bank of America shall have the same rights and remedies under the Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as a Lender. Agent, Lenders and their Affiliates may accept deposits from, lend money to, provide Bank Products to, act as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if they were not Agent or Lenders hereunder, without any duty to account therefor to any Secured Party. In their individual capacities, Agent, Lenders and their Affiliates may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and shall have no obligation to provide such information to any Secured Party.
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. Each Lender, other than Bank of America, that is designated in connection with this credit facility as an “Arranger,” “Bookrunner” or “Agent” of any kind shall have no right or duty under any Loan Documents other than those applicable to all Lenders, and shall in no event have any fiduciary duty to any Secured Party.
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. Each Secured Bank Product Provider, by delivery of a notice to Agent of a Bank Product, agrees to be bound by the Loan Documents, including Sections 5.5, Section 12, 14.3.3 and 14.16, and agrees to indemnify and hold harmless Agent Indemnitees, to the extent not reimbursed by Xxxxxxxx, against all Claims that may be incurred by or asserted against any Agent Indemnitee in connection with such provider’s Secured Bank Product Obligations.
. This Section 12 is an agreement solely among Secured Parties and Agent, and shall survive Full Payment of the Obligations. This Section 12 does not confer any rights or benefits upon Obligors or any other Person. As between Obligors and Agent, any action that Agent may take under any Loan Documents or with respect to any Obligations shall be conclusively presumed to have been authorized and directed by Secured Parties.
. For the purposes of any Liens created under a U.K. Security Document, the following additional provisions shall apply, in addition to the provisions set out in this Section 12.16 or otherwise hereunder.
“Appointee” means any receiver, administrator or other insolvency officer appointed in respect of any Obligor or its assets.
“Charged Property” means the assets of an Obligor subject to a security interest under a U.K. Security Document.
“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Agent (in its capacity as security trustee).
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. This Agreement shall be binding upon and inure to the benefit of Obligors, Agent, Lenders, Secured Parties, and their respective successors and assigns, except that (a) no Obligor may assign or delegate its rights or obligations under any Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section 13.3. Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender.
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. If a Lender (a) within the last 120 days failed to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, (b) is a Defaulting Lender, or (c) within the last 120 days gave a notice under Section 3.5 or requested payment or compensation under Section 3.7 or 5.8 (and has not designated a different Lending Office pursuant to Section 3.8), then Agent or Borrower Agent may, upon 10 days’ notice to such Lender, require it to assign its rights and obligations under the Loan Documents to Eligible Assignee(s), pursuant to appropriate Assignment(s), within 20 days after the notice. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment if the Lender fails to execute it. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents through the date of assignment.
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(h)As used in this Section, the term “Designated Obligations” means all Obligations of Borrowers with respect to (i) principal and interest under the Loans, (ii) unreimbursed drawings under Letters of Credit and interest hereon, and (iii) fees under Section 3.2.
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. EACH OBLIGOR SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ASSERTED BY ANY OBLIGOR OR OTHER PERSON OR ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. Notwithstanding the foregoing, in no event shall any Obligor party to a Loan Document have any obligation thereunder to indemnify or hold harmless an Indemnitee with respect to a Claim that (a) is determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of such Indemnitee, (b) results from a claim brought by any Obligor against an Indemnitee for material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Xxxxxxx has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction, or (c) results from a claim solely among Indemnitees (other than (i) claims against an Indemnitee in its capacity or fulfilling its role as an Agent, Issuing Bank, Swingline Lender or an arranger or a similar role and (ii) claims resulting directly or indirectly from acts or omissions of
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any Obligor or Subsidiary); provided, that the Obligors’ obligation to indemnify the Indemnitees with respect to fees and expenses of legal counsel shall be limited to the reasonable and documented or invoiced out-of-pocket legal fees and expenses of one firm of counsel for all such Indemnitees, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as a whole, and, solely in the case of an actual or reasonably perceived conflict of interest where the Indemnitee affected by such conflict notifies Borrower Agent of the existence of such conflict and thereafter retains its own counsel, by such other one firm of counsel for such affected Indemnitee.
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. Agent may, in its discretion at any time and from time to time, at Obligors’ expense, pay any amount or do any act required of an Obligor under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section shall be reimbursed to Agent by Xxxxxxxx, on demand, with interest from the date incurred until paid in full, at the Default Rate applicable to U.S. Base Rate Loans. Any payment made or action taken by Agent under this Section shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents.
. Agent and Lenders may (but shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Obligor or Subsidiary.
. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of the Loan Documents shall remain in full force and effect.
. The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan Documents may use several limitations or measurements to regulate similar matters, and they agree that these are cumulative and that each must be performed as provided. Except as otherwise provided in another Loan Document (by specific reference to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with any provision in another Loan Document, the provision herein shall govern and control.
; Electronic Records. Any Loan Document, including any required to be in writing, may (if agreed by Agent) be in the form of an Electronic Record and may be executed using Electronic Signatures. An Electronic Signature on or associated with any Communication shall be valid and binding on each Obligor and other party thereto to the same extent as a manual, original signature, and any Communication entered into by Electronic Signature shall constitute the legal, valid and binding obligation of each party, enforceable to the same extent as if a manually executed original signature were delivered. A Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. The parties may use or accept manually signed paper Communications converted into electronic form (such as scanned into pdf), or electronically signed Communications converted into other formats, for transmission, delivery and/or retention. Agent
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and Lenders may, at their option, create one or more copies of a Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of the Person’s business, and may destroy the original paper document. Any Communication in the form or format of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything herein, (a) Agent is under no obligation to accept an Electronic Signature in any form unless expressly agreed by it pursuant to procedures approved by it; (b) each Secured Party shall be entitled to rely on any Electronic Signature purportedly given by or on behalf of an Obligor without further verification and regardless of the appearance or form of such Electronic Signature; and (c) upon request by Agent, any Loan Document using an Electronic Signature shall be promptly followed by a manually executed original counterpart.
. This Agreement shall be effective when executed by Agent and when Agent has received counterparts hereof that, taken together, bear the signature of each other party hereto. Time is of the essence with respect to all Loan Documents and Obligations. The Loan Documents constitute the entire agreement, and supersede all prior understandings and agreements, among the parties relating to the subject matter thereof.
. The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt. It shall not be necessary for Agent or any other Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and no action of Agent, Lenders or any other Secured Party pursuant to the Loan Documents or otherwise shall be deemed to constitute Agent and any Secured Party to be a partnership, joint venture or similar arrangement, nor to constitute control of any Obligor.
. In connection with all aspects of each transaction contemplated by any Loan Document, Obligors acknowledge and agree that (a)(i) this credit facility and any arranging or other services by Agent, any Lender, any of their Affiliates or any arranger are arm’s-length commercial transactions between Obligors and their Affiliates, on one hand, and Agent, any Lender, any of their Affiliates or any arranger, on the other hand; (ii) Obligors have consulted their own legal, accounting, regulatory, tax and other advisors to the extent they have deemed appropriate; and (iii) Obligors are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated by the Loan Documents; (b) each of Agent, Lenders, their Affiliates and any arranger is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Obligors, their Affiliates or any other Person, and has no obligation with respect to the transactions contemplated by the Loan Documents except as expressly set forth therein; and (c) Agent, Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions that involve interests that differ from those of Obligors and their Affiliates, and have no obligation
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to disclose any of such interests to Obligors or their Affiliates. To the fullest extent permitted by Applicable Law, each Obligor hereby waives and releases any claims that it may have against Agent, Lenders, their Affiliates and any arranger with respect to any breach of agency or fiduciary duty in connection with any transaction contemplated by a Loan Document.
. Each of Agent, Lenders and Issuing Bank shall maintain the confidentiality of all Information (as defined below), except that Information may be disclosed (a) to its Affiliates, and to its and their partners, directors, officers, employees, agents, auditors, advisors, attorneys, consultants, service providers and other representatives (provided they are informed of the confidential nature of the Information and instructed to keep it confidential); (b) to the extent requested by any governmental, regulatory or self-regulatory authority purporting to have jurisdiction over it or its Affiliates (in which case Agent, the applicable Lender or the Issuing Bank, as applicable, will endeavor to inform Borrower Agent promptly thereof to the extent not prohibited by Applicable Law); (c) to the extent required by Applicable Law or by any subpoena or other legal process (in which case Agent, the applicable Lender or the Issuing Bank, as applicable, will endeavor to inform Borrower Agent promptly thereof to the extent not prohibited by Applicable Law or such subpoena or legal process); (d) to any other party hereto; (e) in connection with any action or proceeding relating to any Loan Documents or Obligations; (f) subject to an agreement containing provisions substantially the same as this Section, to any Transferee or any actual or prospective party (or its advisors) to any Bank Product or to any swap, derivative or other transaction under which payments are to be made by reference to an Obligor or Obligor’s obligations; (g) to the extent such Information is (i) publicly available other than as a result of a breach of this Section, (ii) available to Agent, any Lender, Issuing Bank or any of their Affiliates on a nonconfidential basis from a source other than Obligors or any Subsidiary and such source is not known by Agent, such Lender or Issuing Bank to be bound by confidentiality provisions with Obligors, or (iii) independently discovered or developed by a party hereto without utilizing any Information or violating this Section; (h) on a confidential basis to a provider of a Platform; or (i) with the consent of Borrower Agent. Obligors consent to the publication by Agent and Lenders of customary advertising material relating to transactions contemplated hereby, using the names, product photographs, logos or trademarks of Obligors and Subsidiaries. Agent and Lenders may disclose information regarding this Agreement and the credit facility hereunder to market data collectors, similar service providers to the lending industry, and service providers to Agent and Lenders in connection with the Loan Documents and Commitments. As used herein, “Information” means information received from an Obligor or Subsidiary relating to it or its business that is identified as confidential when delivered. A Person required to maintain confidentiality of Information pursuant to this Section shall be deemed to have complied if it exercises the same degree of care that accorded its own confidential information. Each of Agent, Lenders and Issuing Bank acknowledges that (i) Information may include material non-public information; (ii) it has developed compliance procedures regarding the use of such information; and (iii) it will handle the material non-public information in accordance with Applicable Law.
. UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY
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THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.
. To the fullest extent permitted by Applicable Law, each Obligor waives (a) the right to trial by jury (which each Secured Party hereby also waives) in any proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or Collateral; (b) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, documents, instruments, chattel paper and guaranties at any time held by Agent on which a Obligor may in any way be liable, and hereby ratifies anything Agent may do in this regard; (c) notice prior to taking possession or control of
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any Collateral; (d) any bond or security that might be required by a court prior to allowing Agent to exercise any rights or remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim against an Indemnitee on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto; and (g) notice of acceptance hereof. Each Obligor acknowledges that the foregoing waivers are a material inducement to Agent, Issuing Bank and Lenders entering into this Agreement and that they are relying upon the foregoing in their dealings with Obligors. Each Obligor has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
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. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties, each party hereto (including each Secured Party) acknowledges that, with respect to any Secured Party that is an Affected Financial Institution, any liability of such Secured Party arising under a Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority, and each party hereto agrees and consents to, and acknowledges and agrees to be bound by, (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liability which may be payable to it by such Secured Party; and (b) the effects of any Bail-in Action on any such liability, including (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under any Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of any Write-Down and Conversion Powers.
. Agent and Lenders hereby notify Obligors that pursuant to the Patriot Act, Agent and Lenders are required to obtain, verify and record information that identifies each Obligor, including its legal name, address, tax ID number and other information that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and Lenders will also require information regarding any personal guarantor and may require information regarding Obligors’ management and owners, such as legal name, address, social security number and date of birth. Obligors shall, promptly upon request, provide all documentation and other information as Agent, Issuing Bank or any Lender may request from time to time for purposes of complying with any “know your customer,” anti-money laundering or other requirements of Applicable Law, including the Patriot Act and Beneficial Ownership Regulation.
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. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
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