EXECUTION COUNTERPART
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REVOLVING CREDIT AGREEMENT
DATED AS OF
DECEMBER 16, 2003
AMONG
TRANSOCEAN INC.,
THE LENDERS PARTIES HERETO,
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT,
CITIBANK, N.A.
AND
BANK OF AMERICA, N.A.,
AS CO-SYNDICATION AGENTS,
THE ROYAL BANK OF SCOTLAND PLC
AND
BANK ONE, NA,
AS CO-DOCUMENTATION AGENTS,
XXXXX FARGO BANK, N. A.
AND
UBS LOAN FINANCE LLC,
AS MANAGING AGENTS,
THE BANK OF NEW YORK,
DEN NORSKE BANK ASA
AND
HSBC BANK USA,
AS CO-AGENTS
AND
CITIGROUP GLOBAL MARKETS INC.,
AND
SUNTRUST CAPITAL MARKETS, INC.,
AS CO-LEAD ARRANGERS
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REVOLVING CREDIT AGREEMENT
--------------------------
THIS REVOLVING CREDIT AGREEMENT (the "Agreement"), dated as of December 16,
2003, among TRANSOCEAN INC. (the "Borrower"), a Cayman Islands company, the
lenders from time to time parties hereto (each a "Lender" and collectively, the
"Lenders"), SUNTRUST BANK, a Georgia banking corporation ("STB"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), CITIBANK, N.A. and BANK OF AMERICA, N.A., as co-syndication agents for
the Lenders (in such capacity, the "Co-Syndication Agents"), THE ROYAL BANK OF
SCOTLAND plc and BANK ONE, NA, as co-documentation agents for the Lenders (in
such capacity, the "Co-Documentation Agents"), XXXXX FARGO BANK, N.A. and UBS
LOAN FINANCE LLC, as managing agents for the Lenders (in such capacity, the
"Managing Agents"), THE BANK OF NEW YORK, DEN NORSKE BANK ASA and HSBC BANK USA,
as co-agents for the Lenders (in such capacity, the "Co-Agents"), and STB, as
issuing bank of the Letters of Credit hereunder (STB and any other Lender that
issues a Letter of Credit hereunder, in such capacity, an "Issuing Bank").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish in its favor
a revolving credit facility in the aggregate principal amount of U.S.
$800,000,000, pursuant to which facility revolving loans would be made to, and
letters of credit would be issued for the account of, the Borrower;
WHEREAS, the Borrower has further requested that a portion of such loans
and letters of credit be made and issued in certain currencies other than U.S.
dollars in an aggregate principal amount up to the U.S. dollar equivalent of
$200,000,000;
WHEREAS, the Lenders are willing to make such revolving credit facility
available to the Borrower on the terms and subject to the conditions and
requirements hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS; INTERPRETATION.
Section 1.1. Definitions. Unless otherwise defined herein, the
following terms shall have the following meanings, which meanings shall be
equally applicable to both the singular and plural forms of such terms:
"Additional Commitment Amount" shall have the meaning set forth in Section
2.14.
"Additional Lender" shall have the meaning set forth in Section 2.14.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans for any
Interest Period, a rate per annum determined in accordance with the following
formula:
Adjusted LIBOR = LIBOR Rate for such Interest Period
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1.00 - Statutory Reserve Rate
"Adjusted LIBOR Loan" means a Eurocurrency Loan bearing interest at a rate
based on Adjusted LIBOR as provided in Section 2.6(b).
"Administrative Agent" means SunTrust Bank, acting in its capacity as
administrative agent for the Lenders, and any successor Administrative Agent
appointed hereunder pursuant to Section 9.7.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"Agreement" means this Revolving Credit Agreement, as the same may be
amended, restated and supplemented from time to time.
"Applicable Facility Fee Rate" means, for any day, at such times as a debt
rating (either express or implied) by S&P or Moody's (or in the event that both
cease the issuance of debt ratings generally, such other ratings agency agreed
to by the Borrower and the Administrative Agent) is in effect on the Borrower's
non-credit enhanced senior unsecured long-term debt, the percentage per annum
set forth opposite such debt rating:
Debt Rating Percentage
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A/A2 or above 0.075%
A-/A3 0.100%
BBB+/Baa1 0.125%
BBB/Baa2 0.150%
BBB-/Baa3 0.175%
BB+/Ba1 or below 0.225%
If the ratings issued by S&P and Moody's differ (i) by one rating, the higher
rating shall apply to determine the Applicable Facility Fee Rate, (ii) by two
ratings, the rating which falls between them shall apply to determine the
Applicable Facility Fee Rate, or (iii) by more than two ratings, the rating
immediately above the lower of the two ratings shall apply to determine the
Applicable Facility Fee Rate. The Borrower shall give written notice to the
Administrative Agent of any changes to such ratings, within three (3) Business
Days thereof, and any change to the Applicable Facility Fee Rate shall be
effective on the date of the relevant change. Notwithstanding the foregoing, if
the Borrower shall at any time fail to have in effect such a debt
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rating on the Borrower's non-credit enhanced senior unsecured long-term debt,
the Borrower shall seek and obtain (if not already in effect), within thirty
(30) days after such debt rating first ceases to be in effect, a corporate
credit rating or a bank loan rating from Moody's or S&P, or both, and the
Applicable Facility Fee Rate shall thereafter be based on such ratings in the
same manner as provided herein with respect to the Borrower's senior unsecured
long-term debt rating (with the Applicable Facility Fee Rate in effect prior to
the issuance of such corporate credit rating or bank loan rating being the same
as the Applicable Facility Fee Rate in effect at the time the senior unsecured
long-term debt rating ceases to be in effect).
"Applicable Margin" means, for any day, at such times as a debt rating
(either express or implied) by S&P or Moody's (or in the event that both cease
the issuance of debt ratings generally, such other ratings agency agreed to by
the Borrower and the Administrative Agent) is in effect on the Borrower's
non-credit enhanced senior unsecured long-term debt, the percentage per annum
set forth opposite such debt rating:
Debt Rating Percentage
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A/A2 or above 0.350%
A-/A3 0.400%
BBB+/Baa1 0.500%
BBB/Baa2 0.625%
BBB-/Baa3 0.800%
BB+/Ba1 or below 0.950%
If the ratings issued by S&P and Moody's differ (i) by one rating, the higher
rating shall apply to determine the Applicable Margin, (ii) by two ratings, the
rating which falls between them shall apply to determine the Applicable Margin,
or (iii) by more than two ratings, the rating immediately above the lower of the
two ratings shall apply to determine the Applicable Margin. The Borrower shall
give written notice to the Administrative Agent of any changes to such ratings,
within three (3) Business Days thereof, and any change to the Applicable Margin
shall be effective on the date of the relevant change. Notwithstanding the
foregoing, if the Borrower shall at any time fail to have in effect such a debt
rating on the Borrower's non-credit enhanced senior unsecured long-term debt,
the Borrower shall seek and obtain (if not already in effect), within thirty
(30) days after such debt rating first ceases to be in effect, a corporate
credit rating or a bank loan rating from Moody's or S&P, or both, and the
Applicable Margin shall thereafter be based on such ratings in the same manner
as provided herein with respect to the Borrower's senior unsecured long-term
debt rating (with the Applicable Margin in effect prior to the issuance of such
corporate credit rating or bank loan rating being the same as the Applicable
Margin in effect at the time the senior unsecured long-term debt rating ceases
to be in effect).
"Applicable Utilization Fee Rate" means, for any day, 0.125% per annum.
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"Application" means an application for a Letter of Credit as defined in
Section 2.12(b).
"Assignment Agreement" means an agreement in substantially the form of
Exhibit 10.10 whereby a Lender conveys part or all of its Commitment, Loans and
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participations in Letters of Credit to another Person that is, or thereupon
becomes, a Lender, or increases its Commitments, outstanding Loans and
outstanding participations in Letters of Credit, pursuant to Section 10.10.
"Australian Dollars" means the lawful currency of Australia.
"Base - Rate" means for any day the greater of:
(i) the fluctuating commercial loan rate announced by the Administrative
Agent from time to time at its Atlanta, Georgia office (or other corresponding
office, in the case of any successor Administrative Agent) as its prime rate or
base rate for U.S. Dollar loans in the United States of America in effect on
such day (which base rate may not be the lowest rate charged by such Lender on
loans to any of its customers), with any change in the Base Rate resulting from
a change in such announced rate to be effective on the date of the relevant
change; and
(ii) the sum of (x) the rate per annum (rounded upwards, if necessary, to
the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the next Business Day, provided that (A) if such day
is not a Business Day, the rate on such transactions on the immediately
preceding Business Day as so published on the next Business Day shall apply, and
(B) if no such rate is published on such next Business Day, the rate for such
day shall be the average of the offered rates quoted to the Administrative Agent
by two (2) federal funds brokers of recognized standing on such day for such
transactions as selected by the Administrative Agent, plus (y) a percentage per
annum equal to one-half of one percent (1/2%) per annum.
"Base Rate Loan" means a Revolving Loan bearing interest prior to maturity
at the rate specified in Section 2.6(a).
"Borrower" means Transocean Inc., a company organized under the laws of the
Cayman Islands, and its successors.
"Borrowing" means any extension of credit of the same Type made by the
Lenders on the same date by way of Revolving Loans having a single Interest
Period or a Letter of Credit, including any Borrowing advanced, continued or
converted. A Borrowing is "advanced" on the day the Lenders advance funds
comprising such Borrowing to the Borrower or a Letter of Credit is issued,
increased or extended, is "continued" (in the case of Eurocurrency Loans) on the
date a new Interest Period commences for such Borrowing, and is "converted" (in
the case of Eurocurrency Loans) when such Borrowing is changed from one Type of
Loan to the other, all as requested by the Borrower pursuant to Section 2.3.
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"Borrowing Multiple" means, for any Loan, (i) in the case of a Borrowing
denominated in Dollars, $100,000, (ii) in the case of a Borrowing denominated in
Euros, E100,000, (iii) in the case of a Borrowing denominated in Pounds, 50,000,
(iv) in the case of a Borrowing denominated in Kroner, 1,000,000 Kroner, (v) in
the case of a Borrowing denominated in Canadian Dollars, 150,000 Canadian
Dollars, (vi) in the case of a Borrowing denominated in Australian Dollars,
150,000 Australian Dollars and (vii) in the case of a Borrowing denominated in
Singapore Dollars, 200,000 Singapore Dollars.
"Borrowing Request" has the meaning set forth in Section 2.3(a).
"Business Day" means any day other than a Saturday or Sunday on which banks
are not authorized or required to close in Atlanta, Georgia or New York, New
York and, if the applicable Business Day relates to the advance or continuation
of, conversion into, or payment on a Eurocurrency Borrowing (i) in a currency
other than Euros, on which banks are dealing in Dollar, Pound, Australian
Dollar, Canadian Dollar, Singapore Dollar or Kroner deposits, as applicable, in
the applicable interbank eurocurrency market in London, England, and (ii) in
Euros, on which the TARGET payment system is open for the settlement of payments
in Euros.
"Calculation Date" means the last Business Day of each calendar quarter.
"Canadian Dollars" or "Cdn.$" means the lawful currency of Canada.
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"Capitalized Lease Obligations" means, for any Person, the aggregate amount
of such Person's liabilities under all leases of real or personal property (or
any interest therein) which is required to be capitalized on the balance sheet
of such Person as determined in accordance with GAAP.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than twelve (12) months
from the date of acquisition, (ii) time deposits and certificates of deposits
maturing within one year from the date of acquisition thereof or repurchase
agreements with financial institutions whose short-term unsecured debt rating is
A or above as obtained from either S&P or Moody's, (iii) commercial paper or
Eurocommercial paper with a rating of at least A-1 by S&P or at least P-1 by
Moody's, with maturities of not more than twelve (12) months from the date of
acquisition, (iv) repurchase obligations entered into with any Lender, or any
other Person whose short-term senior unsecured debt rating from S&P is at least
A-1 or from Xxxxx'x is at least P-1, which are secured by a fully perfected
security interest in any obligation of the type described in (i) above and has a
market value of the time such repurchase is entered into of not less than 100%
of the repurchase obligation of such Lender or such other Person thereunder, (v)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within twelve (12) months from the date of
acquisition thereof or providing for the resetting of the interest rate
applicable thereto not less often than annually and, at the time of acquisition,
having one of the two highest ratings obtainable from either S&P or Moody's, and
(vi) money market funds which have at least $1,000,000,000 in assets and which
invest primarily in securities of the types described in clauses (i) through (v)
above.
5
"Code" means the Internal Revenue Code of 1986, as amended.
"Co-Agents" means, collectively, The Bank of New York, Den norske Bank ASA
and HSBC Bank USA, in their capacities as co-agents for the Lenders, and any
successor Co-Agents appointed pursuant to Section 9.7; provided, however, that
no such Co-Agent shall have any duties, responsibilities, or obligations
hereunder in such capacity.
"Co-Documentation Agents" means, collectively, The Royal Bank of Scotland
plc and Bank One, NA, in their capacities as co-documentation agents for the
Lenders, and any successor Co-Documentation Agents appointed pursuant to Section
9.7; provided, however, that no such Co-Documentation Agent shall have any
duties, responsibilities, or obligations hereunder in such capacity.
"Co-Syndication Agents" means, collectively, Citibank, N.A. and Bank of
America, N.A., acting in their capacities as co-syndication agents for the
Lenders, and any successor Co-Syndication Agents appointed hereunder pursuant to
Section 9.7; provided, however, that no such Co-Syndication Agent shall have any
duties, responsibilities, or obligations hereunder in such capacity.
"Co-Lead Arrangers" means, collectively, SunTrust Capital Markets, Inc. and
Citigroup Global Markets Inc., acting in their capacities as co-lead arrangers
for the credit facility described in this Agreement; provided, however, that no
such Co-Lead Arrangers shall have any duties, responsibilities, or obligations
hereunder in any capacity.
"Collateral" means all property and assets of the Borrower in which the
Administrative Agent or the Collateral Agent is granted a Lien for the benefit
of the Lenders under the terms of Section 7.4.
"Collateral Account" means the cash collateral account for outstanding
undrawn Letters of Credit defined in Section 7.4(b).
"Collateralized Obligations" has the meaning set forth in Section 7.4(b).
"Collateral Agent" means STB acting in its capacity as collateral agent for
the Lenders, and any successor collateral agent appointed hereunder pursuant to
Section 9.7.
"Commitment" means, relative to any Lender, such Lender's obligations to
make Revolving Loans and participate in Letters of Credit pursuant to Sections
2.1 and 2.12, initially in the amount and percentage set forth opposite its
signature hereto or pursuant to Section 10.10, as such obligations may be
reduced or increased from time to time as expressly provided pursuant to this
Agreement.
"Commitment Termination Date" means the earliest of (i) December 16, 2008,
(ii) the date on which the Commitments are terminated in full or reduced to zero
pursuant to Section 2.13, and (iii) the occurrence of any Event of Default
described in Section 7.1(f) or (g) with
6
respect to the Borrower or the occurrence and continuance of any other Event of
Default and either (x) the declaration of the Loans to be due and payable
pursuant to Section 7.2, or (y) in the absence of such declaration, the giving
of written notice by the Administrative Agent, acting at the direction of the
Required Lenders, to the Borrower pursuant to Section 7.2 that the Commitments
have been terminated.
"Compliance Certificate" means a certificate in the form of Exhibit 6.6.
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"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated November 2003, as the same may be
amended, restated and supplemented from time to time and distributed to the
Lenders prior to the Effective Date.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries, the sum of (a) net income or net loss (before discontinued
operations and income or loss resulting from extraordinary items), plus (b) the
sum of (i) Consolidated Interest Expense, (ii) income tax expense, (iii)
depreciation expense, (iv) amortization expense, (v) any loss (or minus any
gain) resulting from the early extinguishment of Indebtedness and (vi) other
non-cash charges, all determined in accordance with GAAP on a consolidated basis
for the Borrower and its Subsidiaries (excluding, in the case of the foregoing
clauses (a) and (b), any net income or net loss and expenses and charges of any
SPVs or other Persons that are not Subsidiaries), plus (c) dividends or
distributions received during such period by the Borrower and its Subsidiaries
from SPVs and any other Persons that are not Subsidiaries. For purposes of the
foregoing, Consolidated EBITDA for the Borrower and its Subsidiaries shall not
include any such amounts attributable to any Subsidiary or business acquired
during such period by the Borrower or any Subsidiary to the extent such amounts
relate to any period prior to the acquisition thereof.
"Consolidated Indebtedness" means all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated balance sheet of such
Persons prepared in accordance with GAAP.
"Consolidated Indebtedness to Total Tangible Capitalization Ratio" means,
at any time, the ratio of Consolidated Indebtedness at such time to Total
Tangible Capitalization at such time.
"Consolidated Interest Expense" means, for any period, total interest
expense of the Borrower and its Subsidiaries on a consolidated basis for such
period, in connection with Indebtedness, all as determined on a consolidated
basis in accordance with GAAP, but excluding capitalized interest expense and
interest expense attributable to expected federal income tax settlements. For
purposes of the foregoing, Consolidated Interest Expense for the Borrower and
its Subsidiaries shall not include any such interest expense attributable to any
Subsidiary or business acquired during such period by the Borrower or any
Subsidiary to the extent such interest expense relates to any period prior to
the acquisition thereof.
"Consolidated Net Assets" means, as of any date of determination, an amount
equal to the aggregate book value of the assets of the Borrower, its
Subsidiaries and, to the extent of the equity interest of the Borrower and its
Subsidiaries therein, SPVs at such time, minus the current liabilities of the
Borrower and its Subsidiaries, all as determined on a consolidated basis in
7
accordance with GAAP based on the most recent quarterly or annual consolidated
financial statements of the Borrower referred to in Section 5.9 or delivered (or
publicly filed) as provided in Section 6.6(a), as the case may be.
"Consolidated Tangible Net Worth" means, as of any date of determination,
consolidated shareholders equity of the Borrower and its Subsidiaries determined
in accordance with GAAP but excluding the effect on shareholders equity of
cumulative foreign exchange translation adjustments, and less the net book
----
amount of all assets of the Borrower and its Subsidiaries that would be
classified as intangible assets on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP. For purposes of this
definition, SPVs shall be accounted for pursuant to the equity method of
accounting.
"Controlling Affiliate" means for the Borrower, (i) any other Person that
directly or indirectly through one or more intermediaries controls, or is under
common control with, the Borrower (other than Persons controlled by the
Borrower), and (ii) any other Person owning beneficially or controlling ten
percent (10%) or more of the equity interests in the Borrower. As used in this
definition, "control" means the power, directly or indirectly, to direct or
cause the direction of management or policies of a Person (through ownership of
voting securities or other equity interests, by contract or otherwise).
"Currency Rate Protection Agreement" shall mean any foreign currency
exchange and future agreements, arrangements and options designed to protect
against fluctuations in currency exchange rates.
"Credit Documents" means this Agreement, the Notes, the Applications, the
Letters of Credit, and any Subsidiary Guaranties in effect from time to time.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"Dollar" and "U.S. Dollar" and the sign "$" mean lawful money of the United
States of America.
"Dollar Equivalent" means, on any date of determination (i) with respect to
any amount in Dollars, such amount, and (ii) with respect to any amount in any
currency other than U.S. Dollars, the equivalent in Dollars of such amount,
determined by the Administrative Agent using the applicable Exchange Rate with
respect to such currency at the time in effect pursuant to Section 10.19 or as
otherwise expressly provided herein.
"Effective Date" means the date this Agreement shall become effective as
defined in Section 10.16.
"EMU Legislation" means the legislative measures of the European Union for
the introduction of, changeover to or operation of the Euro in one or more
member states.
8
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating to any
Environmental Law ("Claims") or any permit issued under any Environmental Law,
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (ii)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to the
environment.
"Environmental Law" means any federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law now or hereafter in
effect, including any judicial or administrative order, consent, decree or
judgment, relating to the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro" or "E" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation for the introduction of, changeover to or operation of the Euro in
one or more member states.
"Eurocurrency", when used in reference to any Loan or Borrowing, means such
Loan, or the Loans comprising such Borrowing, shall bear interest at a rate
determined by reference to Adjusted LIBOR and the Applicable Margin.
"Eurocurrency Loan" means a Revolving Loan bearing interest before maturity
at the rate specified in Section 2.6(b).
"Event of Default" means any of the events or circumstances specified in
Section 7.1.
"Exchange Rate" means on any day, with respect to Euros, Pounds, Australian
Dollars, Canadian Dollars, Singapore Dollars, or Kroner, the offered rate at
which such currency may be exchanged into Dollars, as set forth at approximately
11:00 a.m. on such day on the Reuters NFX Page (or comparable page on the
Telerate or Bloomberg Service) for such currency. In the event that such rate
does not appear on the applicable page of any such services, the Exchange Rate
shall be determined by reference to such other publicly available services for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the Borrower, or, in the absence of such agreement, such Exchange Rate shall
instead be the offered spot rate of exchange of the Administrative Agent or, if
the Administrative Agent shall so determine, one of the Co-Syndication Agents,
in the market where its foreign currency exchange operations in respect of such
currency are then being conducted, at or about 10:00 a.m., local time, on such
date for the purchase of Dollars for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent, after consultation with the Borrower,
may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.
9
"Existing Facilities" means the credit facilities of the Borrower
established pursuant to (i) that certain Credit Agreement dated as of December
29, 2000 among the Borrower, SunTrust Bank, as Administrative Agent, and the
lenders party thereto, (ii) that certain Credit Agreement dated as of December
16, 1999 among the Borrower, SunTrust Bank, as Administrative Agent, and the
lenders party thereto, and (iii) that certain 364-Day Credit Agreement dated as
of December 26, 2002 among the Borrower, SunTrust Bank, as Administrative Agent,
and the lenders party thereto, in each case as amended and in effect immediately
prior to the Effective Date.
"Existing Synthetic Leases" means the credit facilities of the Borrower
established pursuant to (i) that certain synthetic lease pursuant to, inter
alia, a participation agreement dated as of July 30, 1998 among the Borrower,
ABN Amro Bank N.V., as Administrative Agent, and the lenders party thereto and
(ii) that certain synthetic lease pursuant to, inter alia, a participation
agreement dated as of December 18, 2001 among the Borrower, Bank of America,
N.A., as Administrative Agent, and the lenders party thereto, in each case as
amended and in effect from time to time.
"Foreign Currency Payment Accounts" means those bank accounts specified on
Schedule 1.1 for receipt of payments, both from the Lenders and the Borrower, in
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Euros, Pounds, Canadian Dollars, Australian Dollars, Singapore Dollars and
Kroner, as specified on Schedule 1.1, or such other bank accounts as may
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hereafter be specified by the Administrative Agent in writing to the Borrower
and the Lenders as being the applicable bank accounts for receipt of payments in
such currencies.
"Foreign Currency Sublimit" means $200,000,000.
"Foreign Plan" means any pension, profit sharing, deferred compensation, or
other employee benefit plan, program or arrangement maintained by any foreign
Subsidiary of the Borrower which, under applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not include any
benefit provided by a foreign government or its agencies.
"GAAP" means generally accepted accounting principles from time to time in
effect as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the statements and pronouncements of the Financial Accounting Standards Board or
in such other statements, opinions and pronouncements by such other entity as
may be approved by a significant segment of the U.S. accounting profession.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
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"Guarantor" means any Subsidiary of the Borrower required to execute and
deliver a Subsidiary Guaranty hereunder pursuant to Section 6.11, in each case
unless and until the relevant Subsidiary Guaranty is released pursuant to
Section 6.11.
"Guaranty" by any Person means all contractual obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business) of such Person guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or to purchase any
property or assets constituting security therefor, primarily for the purpose of
assuring the owner of such Indebtedness of the ability of the primary obligor to
make payment of such Indebtedness; or (ii) to advance or supply funds (x) for
the purchase or payment of such Indebtedness, or (y) to maintain working capital
or other balance sheet condition, or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness, in each case primarily
for the purpose of assuring the owner of such Indebtedness of the ability of the
primary obligor to make payment of such Indebtedness; or (iii) to lease
property, or to purchase securities or other property or services, of the
primary obligor, primarily for the purpose of assuring the owner of such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness; or (iv) otherwise to assure the owner of such Indebtedness of the
primary obligor against loss in respect thereof. For the purpose of all
computations made under this Agreement, the amount of a Guaranty in respect of
any Indebtedness shall be deemed to be equal to the amount that would apply if
such Indebtedness was the direct obligation of such Person rather than the
primary obligor or, if less, the maximum aggregate potential liability of such
Person under the terms of the Guaranty.
"Hazardous Material" shall have the meaning assigned to that term in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Acts of 1986, and shall
also include petroleum, including crude oil or any fraction thereof, or any
other substance defined as "hazardous" or "toxic" or words with similar meaning
and effect under any Environmental Law applicable to the Borrower or any of its
Subsidiaries.
"Highest Lawful Rate" means the maximum nonusurious interest rate, if any,
that any time or from time to time may be contracted for, taken, reserved,
charged or received on any Loans, under laws applicable to any of the Lenders
which are presently in effect or, to the extent allowed by applicable law, under
such laws which may hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow. Determination of the
rate of interest for the purpose of determining whether any Loans are usurious
under all applicable laws shall be made by amortizing, prorating, allocating,
and spreading, in equal parts during the period of the full stated term of the
Loans, all interest at any time contracted for, taken, reserved, charged or
received from the Borrower in connection with the Loans.
"Indebtedness" means, for any Person, the following obligations of such
Person, without duplication: (i) obligations of such Person for borrowed money;
(ii) obligations of such Person representing the deferred purchase price of
property or services other than accounts payable and
11
accrued liabilities arising in the ordinary course of business and other than
amounts which are being contested in good faith and for which reserves in
conformity with GAAP have been provided; (iii) obligations of such Person
evidenced by bonds, notes, bankers acceptances, debentures or other similar
instruments of such Person, or obligations of such Person arising, whether
absolute or contingent, out of letters of credit issued for such Person's
account or pursuant to such Person's application securing Indebtedness; (iv)
obligations of other Persons, whether or not assumed, secured by Liens (other
than Permitted Liens) upon property or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, but only to the
extent of such property's fair market value; (v) Capitalized Lease Obligations
of such Person; (vi) obligations under Interest Rate Protection Agreements and
Currency Rate Protection Agreements, and (vii) obligations of such Person
pursuant to a Guaranty of any of the foregoing obligations of another Person;
provided, however, Indebtedness shall exclude Non-recourse Debt and any
Indebtedness attributable to the xxxx-to-market treatment of obligations of the
type described in clause (vi) in the definition of Indebtedness and any actual
fair value adjustment arising from any Interest Rate Protection Agreements and
Currency Rate Protection Agreements that have been cancelled or otherwise
terminated before their scheduled expiration, in each case in respect of
Interest Rate Protection Agreements and Currency Rate Protection Agreements
entered into in the ordinary course of business and not for investment or
speculative purposes. For purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture to the
extent such Indebtedness is recourse to such Person.
"Initial Availability Date" means the date on which the conditions
specified in Section 4.1 are satisfied (or waived in accordance with Section
10.11).
"Interest Coverage Ratio" means, as of the end of any fiscal quarter, the
ratio of (i) Consolidated EBITDA for the four fiscal quarter period then ended,
to (ii) Consolidated Interest Expense for the four fiscal quarter period then
ended.
"Interest Payment Date" means (a) with respect to any Base Rate Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means with respect to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or if available from each Lender making a Loan as part of such
Borrowing, any other period), in each case as the Borrower may elect. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
12
"Interest Rate Protection Agreement" shall mean any interest rate swap,
interest rate cap, interest rate collar, or other interest rate hedging
agreement or arrangement designed to protect against fluctuations in interest
rates.
"Issuing Bank" is defined in the preamble.
"Joinder Agreement" means an agreement in substantially the form of Exhibit
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2.14C signed by the Borrower, by each Additional Lender and by each other Lender
-----
whose Commitment is to be increased, setting forth the new Commitments of such
Lenders and setting forth the agreement of each Additional Lender to become a
party to this Agreement and to be bound by all the terms and provisions hereof.
"Kroner" means lawful money of the Kingdom of Norway.
"L/C Documents" means the Letters of Credit, any Issuance Requests and
Applications with respect thereto, any draft or other document presented in
connection with a drawing thereunder, and this Agreement.
"L/C Obligations" means the undrawn face amounts of all outstanding Letters
of Credit and all unpaid Reimbursement Obligations.
"Lender" is defined in the preamble.
"Lending Office" means the "Lending Office" of such Lender (or an Affiliate
of such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"Letter of Credit" means any of the letters of credit to be issued by the
Issuing Bank for the account of the Borrower pursuant to Section 2.12(a).
"LIBOR Rate" means, relative to any Interest Period for each Eurocurrency
Borrowing in any applicable currency, the rate per annum quoted at or about
11:00 a.m. (London, England time) two Business Days before the commencement of
such Interest Period on that page of the Reuters, Telerate or Bloombergs
reporting service (as then being used by the Administrative Agent to obtain such
interest rate quotes) that displays British Bankers' Association interest
settlement rates for deposits in the applicable currency of such Eurocurrency
Borrowing, or if such page or such service shall cease to be available, such
other page or other service (as the case may be) for the purpose of displaying
British Bankers' Association interest settlement rates as reasonably determined
by the Administrative Agent after consultation with the Borrower as to the use
of any such other service. If for any reason any such settlement interest rate
for such Interest Period is not available through any such interest rate
reporting service, then the "LIBOR Rate" with respect to such Eurocurrency
Borrowing will be the rate at which the Administrative Agent or, if the
Administrative Agent shall so determine, one of the Co-Syndication Agents, is
offered deposits for such applicable currency in the Dollar Equivalent of
$5,000,000 for a period
13
approximately equal to such Interest Period in the London interbank market at
10:00 a.m. two Business Days before the commencement of such Interest Period.
"Lien" means any interest in any property or asset in favor of a Person
other than the owner of such property or asset and securing an obligation owed
to, or a claim by, such Person, whether such interest is based on the common
law, statute or contract, including, but not limited to, the security interest
lien arising from a mortgage, encumbrance, pledge, conditional sale, security
agreement or trust receipt, or a lease, consignment or bailment for security
purposes.
"Loan" means (i) a Base Rate Loan or (ii) a Eurocurrency Loan, as the case
may be, and "Loans" means two or more of any such Loans.
"Managing Agents" means, collectively, Xxxxx Fargo Bank, N.A. and UBS Loan
Finance LLC, in their capacities as managing agents for the Lenders, and any
successor Managing Agents appointed pursuant to Section 9.7; provided, however,
that no such Managing Agent shall have any duties, responsibilities, or
obligations hereunder in such capacity.
"Mandatory Cost Rate" means in relation to any relevant period and sum, the
rate determined in accordance with Exhibit 2.15 hereto.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, operations or condition of the Borrower and its Subsidiaries
taken as a whole, or (ii) the Borrower's ability to perform any of its payment
obligations under the Agreement or the Notes, or in respect of the Letters of
Credit.
"Maturity Date" means the earlier of (i) the Commitment Termination Date,
and (ii) the date on which the Loans have become due and payable pursuant to
Section 7.2 or 7.3.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"Non-recourse Debt" means with respect to any Person (i) obligations of
such Person against which the obligee has no recourse to such Person except as
to certain named or described present or future assets or interests of such
Person, and (ii) the obligations of SPVs to the extent the obligee thereof has
no recourse to the Borrower or any of its Subsidiaries, except as to certain
specified present or future assets or interests of SPVs.
"Note" means any of the promissory notes of the Borrower defined in Section
2.8.
"Obligations" means all obligations of the Borrower to pay fees, costs and
expenses hereunder, to pay principal or interest on Loans and Reimbursement
Obligations and to pay any other obligations to the Administrative Agent or any
Lender or Issuing Bank arising under any Credit Document.
"Other Agents" means, collectively, the Co-Agents, the Co-Documentation
Agents, the Co-Syndication Agents and the Managing Agents.
14
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Percentage" means, for each Lender, the percentage of the Commitments
represented by such Lender's Commitment; provided, that, if the Commitments are
terminated, each Lender's Percentage shall be calculated based on such Lender's
pro rata share of the total Loans and L/C Obligations then outstanding or, if no
Loans or L/C Obligations are then outstanding, its Commitment in effect
immediately before such termination, subject to any assignments by such Lender
of Obligations pursuant to Section 10.10.
"Performance Guaranties" means all Guaranties of the Borrower or any of its
Subsidiaries delivered in connection with the construction financing of drill
ships, offshore mobile drilling units or offshore drilling rigs for which firm
drilling contracts have been obtained by the Borrower, any of its Subsidiaries
or a SPV.
"Performance Letters of Credit" means all letters of credit for the account
of the Borrower, any Subsidiary or a SPV issued as support for Non-recourse Debt
or a Performance Guaranty.
"Permitted Business" has the meaning ascribed to such term in Section 6.8.
"Permitted Liens" means the Liens permitted as described in Section 6.10.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or any agency or political subdivision
thereof.
"Plan" means an employee pension benefit plan covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code that
is either (i) maintained by the Borrower or any of its Subsidiaries, or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
the Borrower or any of its Subsidiaries is then making or accruing an obligation
to make contributions or has within the preceding five (5) plan years made or
had an obligation to make contributions.
"Pounds" means the lawful currency of the United Kingdom.
"Reimbursement Obligations" has the meaning ascribed to such term in
Section 2.12(c).
"Required Lenders" means, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving
Credit Exposures and unused Commitments at such time or, if the Commitments have
been terminated or expired, Lenders having more than 50% of the sum of the total
Revolving Credit Exposures of all Lenders.
"Reset Date" has the meaning assigned to such term in Section 10.19.
15
"Revolving Credit" means the credit facility for making Revolving Loans and
issuing Letters of Credit described in Sections 2.1 and 2.12.
"Revolving Credit Commitment Amount" means an amount equal to $800,000,000,
as such amount may be increased or reduced from time to time pursuant to the
terms of this Agreement.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum at such time, without duplication, of (i) such Lender's applicable
Percentage of the Dollar Equivalent of the principal amounts of the outstanding
Revolving Loans, and (ii) such Lender's applicable Percentage of the Dollar
Equivalent of the aggregate outstanding L/C Obligations.
"Revolving Loan" means each of the revolving loans defined in Section 2.1.
"Revolving Obligations" means the sum of the Dollar Equivalent of the
principal amount of all Revolving Loans and L/C Obligations outstanding.
"Sale-Leaseback Transaction" means any arrangement whereby the Borrower or
a Subsidiary shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease property that it intends to use for substantially the same purpose
or purposes as the property sold or transferred.
"S&P" means Standard & Poor's Ratings Group or any successor thereto.
"SPV" means any Person that is designated by the Borrower as a SPV,
provided that the Borrower shall not designate as a SPV any Subsidiary (other
than TODCO) that owns, directly or indirectly, any other Subsidiary that has
total assets (including assets of any Subsidiaries of such other Subsidiary, but
excluding any assets that would be eliminated in consolidation with the Borrower
and its Subsidiaries) which equates to at least five percent (5%) of the
Borrower's Total Assets, or that had net income (including net income of any
Subsidiaries of such other Subsidiary, all before discontinued operations and
income or loss resulting from extraordinary items, but excluding revenues and
expenses that would be eliminated in consolidation with the Borrower and its
Subsidiaries and excluding any loss or gain resulting from the early
extinguishment of Indebtedness) during the most recently completed fiscal year
of the Borrower in excess of the greater of (i) $1,000,000, and (ii) fifteen
percent (15%) of the net income (before discontinued operations and income or
loss resulting from extraordinary items and excluding any loss or gain resulting
from the early extinguishment of Indebtedness) for the Borrower and its
Subsidiaries, all as determined on a consolidated basis in accordance with GAAP
during such fiscal year of the Borrower. The Borrower may elect to treat any
Subsidiary as a SPV (provided such Subsidiary would otherwise qualify as such),
and may rescind any such prior election, by giving written notice thereof to the
Administrative Agent specifying the name of such Subsidiary or SPV, as the case
may be, and the effective date of such election, which shall be a date within
sixty (60) days after the date such notice is given. The election to treat a
particular Person as a SPV may only be made once.
"Singapore Dollars" means the lawful currency of Singapore.
16
"Significant Subsidiary" has the meaning ascribed to it under Regulation
S-X promulgated under the Securities Exchange Act of 1934, as amended.
"Statutory Reserve Rate" means, with respect to any currency, the aggregate
of the maximum reserve, liquid asset or similar percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by any Governmental Authority of the United States or of the
jurisdiction of such currency or any jurisdiction in which Loans in such
currency are made to which banks in such jurisdiction are subject for any
category of deposits or liabilities customarily used to fund loans in such
currency or by reference to which interest rates applicable to loans in such
currency are determined. Such reserve, liquid asset or similar percentages
shall include those imposed pursuant to Regulation D of the Board of Governors
of the Federal Reserve System. Eurocurrency Loans shall be deemed to be subject
to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under Regulation D or any other applicable law, rule or regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, for any Person, any other Person (other than, except in
the context of Section 6.6(a), a SPV) of which more than fifty percent (50%) of
the outstanding stock or comparable equity interests having ordinary voting
power for the election of the board of directors of such corporation, any
managers of such limited liability company or similar governing body
(irrespective of whether or not at the time stock or other equity interests of
any other class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency), is at
the time directly or indirectly owned by such former Person or by one or more of
its Subsidiaries.
"Subsidiary Debt Basket Amount" has the meaning ascribed to such term in
Section 6.11(i).
"Subsidiary Guaranty" means any Guaranty of any Subsidiary delivered
pursuant to Section 6.11(k).
"TARGET" means the Trans-European Automated Real-Time Gross Settlement
Express Transfer system.
"Taxes" has the meaning set forth in Section 5.12.
"TODCO" means the Subsidiary of the Borrower that holds, together with any
Subsidiaries of such Subsidiary, all or substantially all of the assets of the
shallow and inland water business segment of the Borrower and its Subsidiaries
(including the jackup rig and drilling barge operations in the U.S. Gulf of
Mexico and the drilling operations in Trinidad, Mexico and Venezuela).
17
"Total Assets" means, as of any date of determination, the aggregate book
value of the assets of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as of such date.
"Total Tangible Capitalization" means, as of any date of determination, the
sum of Consolidated Indebtedness plus Consolidated Tangible Net Worth as of such
date.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to Adjusted LIBOR or the Base Rate.
"Unfunded Vested Liabilities" means, for any Plan at any time, the amount
(if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, determined as of the then most recent valuation date
for such Plan, but only to the extent that such excess represents a potential
liability of the Borrower or any of its Subsidiaries to the PBGC or such Plan.
Section 1.2. Time of Day. Unless otherwise expressly provided, all
-------------
references to time of day in this Agreement and the other Credit Documents shall
be references to New York, New York time.
Section 1.3. Accounting Terms; GAAP. Except as otherwise expressly
------------------------
provided herein, and subject to the provisions of Section 10.20, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time.
ARTICLE 2. THE CREDIT FACILITIES.
Section 2.1. Commitments for Revolving Loans. Subject to the terms and
-------------------------------
conditions hereof, each Lender severally and not jointly agrees to make one or
more loans (each a"Revolving Loan") to the Borrower from time to time prior to
the Commitment Termination Date on a revolving basis in an aggregate amount not
to exceed at any time outstanding an amount equal to its Commitment, subject to
any reductions thereof pursuant to the terms of this Agreement;provided,however,
that no Lender shall be required to make any Revolving Loan if, after giving
effect thereto, (i) the Dollar Equivalent of the aggregate principal amount of
the Revolving Loans and the L/C Obligations of all Lenders (determined in
accordance with Section 10.19) would thereby exceed the Revolving Credit
Commitment Amount then in effect; or (ii) the Dollar Equivalent of the Revolving
Credit Exposure of such Lender (determined in accordance with Section 10.19)
would thereby exceed its Commitment then in effect. Each Borrowing of Revolving
Loans shall be made ratably from the Lenders in proportion to their respective
Percentages. Revolving Loans may be repaid, in whole or in part, and all or any
portion of the principal amount thereof reborrowed, before the Commitment
Termination Date, subject to the terms and conditions hereof. Funding of any
Revolving Loans shall be in any combination of Dollars, Euros, Pounds,
Australian Dollars, Canadian Dollars, Singapore Dollars or Kroner as specified
by the Borrower as set forth in Section 2.3;provided,that the Dollar Equivalent
amount of the principal amount of outstanding Revolving Loans and L/C
Obligations funded and issued in Euros, Pounds, Australian Dollars, Canadian
Dollars, Singapore Dollars
18
and Kroner determined, with respect to each such Revolving Loans and L/C
Obligations in accordance with Section 10.19 shall at no time exceed the Foreign
Currency Sublimit then in effect.
Section 2.2. Types of Revolving Loans and Minimum Borrowing
----------------------------------------------------
Amounts. Borrowings of Revolving Loans may be outstanding as either Base Rate
-------
Loans or Adjusted LIBOR Loans, as selected by the Borrower pursuant to Section
2.3;provided, however, that any Revolving Loans funded in Euros, Australian
Dollars, Canadian Dollars, Singapore Dollars, Pounds or Kroner may only be
outstanding as Adjusted LIBOR Loans. Each Borrowing of Base Rate Loans shall be
in an amount of not less than $1,000,000 and each Borrowing of Adjusted LIBOR
Loans shall be in an amount of not less than the Dollar Equivalent of $5,000,000
and in an integral multiple of the Borrowing Multiple.
Section 2.3. Manner of Borrowings; Continuations and Conversions of
---------------------------------------------------------
Borrowings.
----------
(a) Notice of Revolving Loan Borrowings. The Borrower shall give
------------------------------------
notice to the Administrative Agent by no later than 12:00 p.m. (i) at least
three (3) Business Days before the date on which the Borrower requests the
Lenders to advance a Borrowing of Eurocurrency Loans to be funded in Dollars and
at least four (4) Business Days before the date on which the Borrower requests
the Lenders to advance a Borrowing of Eurocurrency Loans to be funded in Euros,
Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars or Kroner, and
(ii) on the date the Borrower requests the Lenders to advance a Borrowing of
Base Rate Loans, in each case pursuant to a duly executed Borrowing Request
substantially in the form of Exhibit 2.3 (each a "Borrowing Request").
------------
(b) Notice of Continuation or Conversion of Outstanding
---------------------------------------------------------
Borrowings. The Borrower may from time to time elect to change or continue the
----------
type of interest rate borne by each Revolving Loan Borrowing or, subject to the
minimum amount requirements in Section 2.2 for each outstanding Revolving Loan
Borrowing, a portion thereof, as follows: (i) if such Borrowing is of
Eurocurrency Loans, the Borrower may continue part or all of such Borrowing as
Eurocurrency Loans for an Interest Period specified by the Borrower or convert
part or all of such Borrowing into Base Rate Loans on the last day of the
Interest Period applicable thereto, or the Borrower may earlier convert part or
all of such Borrowing into Base Rate Loans so long as it pays the breakage fees
and funding losses provided in Section 2.11; and (ii) if such Borrowing is of
Base Rate Loans, the Borrower may convert all or part of such Borrowing into
Eurocurrency Loans for an Interest Period specified by the Borrower on any
Business Day, in each case pursuant to notices of continuation or conversion as
set forth below. The Borrower may select multiple Interest Periods for the
Eurocurrency Loans constituting any such particular Borrowing, provided that at
no time shall the number of different Interest Periods for outstanding
Eurocurrency Loans exceed twenty (20) (it being understood for such purposes
that (x) Interest Periods of the same duration, but commencing on different
dates, shall be counted as different Interest Periods, and (y) all Interest
Periods commencing on the same date and of the same duration shall be counted as
one Interest Period regardless of the number of Borrowings or Loans involved.
Notices of the continuation of such Eurocurrency Loans for an additional
Interest Period or of the conversion of part or all of such Eurocurrency Loans
into Base Rate Loans or of such Base Rate Loans into Eurocurrency Loans must be
given by no later than 12:00 p.m. at least
19
three (3) Business Days with respect to Eurocurrency Loans funded in Dollars and
four (4) Business Days with respect to Eurocurrency Loans funded in Euros,
Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars or Kroner,
before the date of the requested continuation or conversion.
(c) Manner of Notice. The Borrower shall give such notices
------------------
concerning the advance, continuation, or conversion of a Borrowing pursuant to
this Section 2.3 by telephone or facsimile (which notice shall be irrevocable
once given and, if by telephone, shall be promptly confirmed in writing)
pursuant to a Borrowing Request which shall specify the date of the requested
advance, continuation or conversion (which shall be a Business Day), the amount
and currency of the requested Borrowing, whether such Borrowing is to be
advanced, continued, or converted, the type of Loans to comprise such new,
continued or converted Borrowing and, if such Borrowing is to be comprised of
Eurocurrency Loans, the Interest Period applicable thereto. The Borrower agrees
that the Administrative Agent may rely on any such telephonic or facsimile
notice given by any Person it in good faith believes is an authorized
representative of the Borrower without the necessity of independent
investigation and that, if any such notice by telephone conflicts with any
written confirmation, such telephonic notice shall govern if the Administrative
Agent has acted in reliance thereon.
(d) Notice to the Lenders. The Administrative Agent shall give
------------------------
prompt telephonic, telex or facsimile notice to each Lender of any notice
received pursuant to this Section 2.3 relating to a Revolving Loan Borrowing.
The Administrative Agent shall give notice to the Borrower and each Lender by
like means of the interest rate applicable to each Borrowing of Eurocurrency
Loans (but, if such notice is given by telephone, the Administrative Agent shall
confirm such rate in writing) promptly after the Administrative Agent has made
such determination.
(e) Borrower's Failure to Notify. If the Borrower fails to give
------------------------------
notice pursuant to Section 2.3(a) of (i) the continuation or conversion of any
outstanding principal amount of a Borrowing of Eurocurrency Loans, or (ii) a
Borrowing of Revolving Loans to pay outstanding Reimbursement Obligations, and
has not notified the Administrative Agent by 12:00 p.m. at least three (3)
Business Days before the last day of the Interest Period for any Borrowing of
Eurocurrency Loans funded in Dollars or at least four (4) Business Days before
the last day of the Interest Period for any Borrowing of Eurocurrency Loans
funded in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars
or Kroner, or by the day such Reimbursement Obligation becomes due, as the case
may be, that it intends to repay such Borrowing or Reimbursement Obligation, the
Borrower shall be deemed to have requested, as applicable, (x) the continuation
of such Borrowing as a Eurocurrency Loan with an Interest Period of one (1)
month or (y) the advance of a new Borrowing of Base Rate Loans (after
converting, if necessary, the Reimbursement Obligation into Dollars using the
Exchange Rate in effect on such date) on such day in the amount of the
Reimbursement Obligation then due, which Borrowing pursuant to this clause (y)
shall be deemed to have been funded on such date by the Lenders in accordance
with Section 2.3(a) and to have been applied on such day to pay the
Reimbursement Obligation then due, in each case so long as no Event of Default
shall have occurred and be continuing or would occur as a result of such
Borrowing but otherwise disregarding the conditions to Borrowings set forth in
Section 4.2. Upon the occurrence and
20
during the continuance of any Event of Default, and upon notice thereof from the
Administrative Agent to the Borrower (i) each Eurocurrency Loan will
automatically, on the last day of the then existing Interest Period therefor,
convert into a Base Rate Loan, and (ii) the obligation of the Lenders to fund
Loans in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars
or Kroner, and to make, continue or convert Loans into Eurocurrency Loans shall
be suspended.
(f) Conversion. If the Borrower shall elect to convert any
----------
particular Borrowing pursuant to this Section 2.3 from one Type of Loan to the
other only in part, then, from and after the date on which such conversion shall
be effective, such particular Borrowing shall, for all purposes of this
Agreement (including, without limitation, for purposes of subsequent application
of this sentence) be deemed to instead constitute two Borrowings (each
originally advanced on the same date as such particular Borrowing), one
comprised of (subject to subsequent conversion in accordance with this
Agreement) Eurocurrency Loans in an aggregate principal amount equal to the
portion of such Borrowing so elected by the Borrower to be comprised of
Eurocurrency Loans and the second comprised of (subject to subsequent conversion
in accordance with this Agreement) Base Rate Loans in an aggregate principal
amount equal to the portion of such particular Borrowing so elected by the
Borrower to be comprised of Base Rate Loans. If the Borrower shall elect to
have multiple Interest Periods apply to any such particular Borrowing comprised
of Eurocurrency Loans, then, from and after the date such multiple Interest
Periods commence, such particular Borrowing shall, for all purposes of this
Agreement (including, without limitation, for purposes of subsequent application
of this sentence), be deemed to constitute a number of separate Borrowings (each
originally commencing on the same date as such particular Borrowing) equal to
the number of, and corresponding to, the different Interest Periods so selected,
each such deemed separate Borrowing corresponding to a particular selected
Interest Period comprised of (subject to subsequent conversion in accordance
with this Agreement) Eurocurrency Loans in an aggregate principal amount equal
to the portion of such particular Borrowing so elected by the Borrower to have
such Interest Period. This Section 2.3(f) shall be applied appropriately in the
event that the Borrower shall make the elections described in the two preceding
sentences at the same time with respect to the same particular Borrowing.
Section 2.4. Interest Periods. As provided in Section 2.3, at the time
----------------
of each request for a Borrowing of Eurocurrency Loans, or for the continuation
or conversion of any Borrowing of Eurocurrency Loans, the Borrower shall select
the Interest Period(s) to be applicable to such Loans from among the available
options, subject to the limitations in Section 2.3;provided, however, that:
(i) the Borrower may not select an Interest Period that extends beyond
the Commitment Termination Date;
(ii) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall
either be (i) extended to the next succeeding Business Day, or (ii) in the
case of Eurocurrency Loans only, reduced to the immediately preceding
Business Day if the next succeeding Business Day is in the next calendar
month; and
21
(iii) for purposes of determining an Interest Period, a month means a
period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided,
however, that if there is no such numerically corresponding day in the
month in which an Interest Period is to end or if an Interest Period begins
on the last Business Day of a calendar month, then in the case of
Eurocurrency Loans only, such Interest Period shall end on the last
Business Day of the calendar month in which such Interest Period is to end.
Section 2.5. Funding of Loans.
------------------
(a) Disbursement of Loans. Not later than 12:00 p.m. with respect
---------------------
to Borrowings in Dollars of Eurocurrency Loans, and 2:00 p.m. with respect to
Base Rate Revolving Loans, on the date of any requested advance of a new
Borrowing of Loans, each Lender, subject to all other provisions hereof, shall
make available its Loan comprising its portion of such Borrowing in funds
immediately available in Atlanta, Georgia for the benefit of the Administrative
Agent and according to the payment instructions of the Administrative Agent. Not
later than 2:00 p.m. (local time at the bank where the applicable Foreign
Currency Payment Account is maintained) with respect to a new Borrowing in
Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars, or
Kroner, on the date of any such requested Borrowing, each Lender, subject to all
other provisions hereof, shall make available its portion of such Borrowing in
funds immediately available in the applicable Foreign Currency Payment Account
for the benefit of the Administrative Agent and according to the payment
instructions of the Administrative Agent. The Administrative Agent shall make
the proceeds of each such Borrowing available in immediately available funds to
the Borrower (or as directed in writing by the Borrower) on such date. In the
event that any Lender does not make such amounts available to the Administrative
Agent by the time prescribed above, but such amount is received later that day,
such amount may be credited to the Borrower in the manner described in the
preceding sentence on the next Business Day (with interest on such amount to
begin accruing hereunder on such next Business Day) provided that acceptance by
the Borrower of any such late amount shall not be deemed a waiver by the
Borrower of any rights it may have against such Lender. No Lender shall be
responsible to the Borrower for any failure by another Lender to fund its
portion of a Borrowing, and no such failure by a Lender shall relieve any other
Lender from its obligation, if any, to fund its portion of a Borrowing.
(b) Administrative Agent Reliance on Lender Funding. Unless the
-------------------------------------------------
Administrative Agent shall have been notified by a Lender prior to 12:00 noon at
least 2 Business Days prior to the date on which such Lender is scheduled to
make payment to the Administrative Agent of the proceeds of a Loan (which notice
shall be effective upon receipt) that such Lender does not intend to make such
payment, the Administrative Agent may assume that such Lender has made such
payment when due and in reliance upon such assumption may (but shall not be
required to) make available to the Borrower the proceeds of the Loan to be made
by such Lender and, if any Lender has not in fact made such payment to the
Administrative Agent, such Lender shall, on demand, pay to the Administrative
Agent the amount made available to the Borrower attributable to such Lender
together with interest thereon for each day during the period commencing on the
date such amount was made available to the Borrower and ending on (but
excluding) the date
22
such Lender pays such amount to the Administrative Agent at a rate per annum
equal to the Administrative Agent's cost of funds for such amount. If such
amount is not received from such Lender by the Administrative Agent immediately
upon demand, the Borrower will, on demand, repay to the Administrative Agent the
proceeds of the Loan attributable to such Lender with interest thereon at a rate
per annum equal to the interest rate applicable to the relevant Loan, but the
Borrower will in no event be liable to pay any amounts otherwise due pursuant to
Section 2.11 in respect of such repayment. Nothing in this subsection shall be
deemed to relieve any Lender from any obligation to fund any Loans hereunder or
to prejudice any rights which the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
Section 2.6. Applicable Interest Rates.
---------------------------
(a) Base Rate Loans. Each Base Rate Loan shall bear interest
-----------------
(computed on the basis of a 365-day year or 366-day year, as the case may be,
and actual days elapsed excluding the date of repayment) on the unpaid principal
amount thereof from the date such Loan is made until maturity (whether by
acceleration or otherwise) or conversion to a Eurocurrency Loan, at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate, or (ii) the Base Rate
from time to time in effect. The Borrower agrees to pay such interest on each
Interest Payment Date for such Loan and at maturity (whether by acceleration or
otherwise).
(b) Eurocurrency Loans. Each Eurocurrency Loan shall bear
-------------------
interest (computed on the basis of a 360-day year and actual days elapsed,
except with respect to Eurocurrency Loans funded in Pounds, in which case
interest will be computed on the basis of a 365-day year or 366-day year, as the
case may be, and actual days elapsed, in each case excluding the date of
repayment) on the unpaid principal amount thereof from the date such Loan is
made until maturity (whether by acceleration or otherwise) or, in the case of
Eurocurrency Loans, conversion to a Base Rate Loan at a rate per annum equal to
the lesser of (i) the Highest Lawful Rate, or (ii) the sum of Adjusted LIBOR
plus the Applicable Margin. The Borrower agrees to pay such interest on each
Interest Payment Date for such Loan and at maturity (whether by acceleration or
otherwise) or, in the case of Eurocurrency Loans, conversion to a Base Rate
Loan.
(c) Rate Determinations. The Administrative Agent shall determine
-------------------
each interest rate applicable to the Loans and Reimbursement Obligations
hereunder insofar as such interest rate involves a determination of Base Rate,
Adjusted LIBOR or LIBOR Rate, or any applicable default rate pursuant to Section
2.7, and such determination shall be conclusive and binding except in the case
of the Administrative Agent's manifest error or willful misconduct. The
Administrative Agent shall promptly give notice to the Borrower and each Lender
of each determination of Adjusted LIBOR, with respect to each Eurocurrency Loan.
Section 2.7. Default Rate. If any payment of principal on any Loan is
------------
not made when due after the expiration of the grace period therefor provided in
Section 7.1(a) (whether by acceleration or otherwise), or any Reimbursement
Obligation is not paid when due as provided in Section 2.12(c), such Loan or
Reimbursement Obligation shall bear interest (computed on the basis of a year of
360, 365 or 366 days, as applicable, and actual days elapsed) after any such
23
grace period expires until such principal then due is paid in full, which the
Borrower agrees to pay on demand, at a rate per annum equal to:
(a) for any Base Rate Loan, the lesser of (i) the Highest Lawful
Rate, or (ii) the sum of two percent (2%) per annum plus the Base Rate from time
to time in effect (but not less than the Base Rate in effect at the time such
payment was due);
(b) for any Eurocurrency Loan, the lesser of (i) the Highest
Lawful Rate, or (ii) the sum of two percent (2%) per annum plus the rate of
interest in effect thereon at the time of such default until the end of the
Interest Period for such Loan and, thereafter, at a rate per annum equal to the
sum of two percent (2%) per annum plus (x) in the case of any Loans made in
Dollars, the Base Rate from time to time in effect (but not less than the Base
Rate in effect at the time such payment was due), or (y) in the case of any
Loans made in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore
Dollars or Kroners, the interest rate that would otherwise then be applicable
under this Agreement to a Eurocurrency Loan made in such currency for an
Interest Period of one month as from time to time in effect (but not less than
such interest rate in effect at the time such payment was due); and
(c) for any unpaid Reimbursement Obligations, the lesser of (i)
the Highest Lawful Rate, or (ii) the sum of two percent (2%) per annum plus (x)
in the case of any Reimbursement Obligations payable in Dollars, the Base Rate
from time to time in effect (but not less than the Base Rate in effect at the
time such payment was due), or (y) in the case of any Reimbursement Obligations
payable in any currency other than Dollars, the interest rate that would
otherwise then be applicable under this Agreement to a Eurocurrency Loan made in
such currency for an Interest Period of one month as from time to time in effect
(but not less than such interest rate in effect at the time such payment was
due).
It is the intention of the Administrative Agent and the Lenders to conform
strictly to usury laws applicable to them. Accordingly, if the transactions
contemplated hereby or any Loan or other Obligation would be usurious as to any
of the Lenders under laws applicable to it (including the laws of the United
States of America and the State of New York or any other jurisdiction whose laws
may be mandatorily applicable to such Lender notwithstanding the other
provisions of this Agreement, the Notes or any other Credit Document), then, in
that event, notwithstanding anything to the contrary in this Agreement, the
Notes or any other Credit Document, it is agreed as follows: (i) the aggregate
of all consideration which constitutes interest under laws applicable to such
Lender that is contracted for, taken, reserved, charged or received by such
Lender under this Agreement, the Notes or any other Credit Document or otherwise
shall under no circumstances exceed the Highest Lawful Rate, and any excess
shall be credited by such Lender on the principal amount of the Loans or to the
Reimbursement Obligations (or, if the principal amount of the Loans and all
Reimbursement Obligations shall have been paid in full, refunded by such Lender
to the Borrower); and (ii) in the event that the maturity of the Loans is
accelerated by reason of an election of the holder or holders thereof resulting
from any Event of Default hereunder or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under laws applicable to such Lender may never include more than the
Highest Lawful Rate, and excess interest, if any, provided for in this
Agreement, the Notes, any other Credit Document or otherwise shall be
24
automatically canceled by such Lender as of the date of such acceleration or
prepayment and, if theretofore paid, shall be credited by such Lender on the
principal amount of the Loans or to the Reimbursement Obligations (or if the
principal amount of the Loans and all Reimbursement Obligations shall have been
paid in full, refunded by such Lender to the Borrower). To the extent that the
Texas Finance Code, Chapters 302 and 303, are relevant to the Administrative
Agent and the Lenders for the purpose of determining the Highest Lawful Rate,
the Administrative Agent and the Lenders hereby elect to determine the
applicable rate ceiling under such Chapter by the indicated (weekly) rate
ceiling from time to time in effect, subject to their right subsequently to
change such method in accordance with applicable law. In the event the Loans
and all Reimbursement Obligations are paid in full by the Borrower prior to the
full stated term of the Loans and the interest received from the actual period
of the existence of the Loans exceeds the Highest Lawful Rate, the Lenders shall
refund to the Borrower the amount of the excess or shall credit the amount of
the excess against amounts owing under the Loans and none of the Administrative
Agent or the Lenders shall be subject to any of the penalties provided by law
for contracting for, taking, reserving, charging or receiving interest in excess
of the Highest Lawful Rate. The Texas Finance Code, Chapter 346, which
regulates certain revolving credit loan accounts and revolving tri-party
accounts, shall not apply to this Agreement or the Loans.
Section 2.8. Repayment of Loans; Evidence of Debt.
-----------------------------------------
(a) Repayment of Loans. The Borrower hereby promises to pay to
--------------------
the Administrative Agent for the account of each Lender, on the Commitment
Termination Date, the unpaid amount of each Revolving Loan then outstanding.
(b) Record of Loans by Lenders. Each Lender shall maintain in
------------------------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and accrued interest payable and
paid to such Lender from time to time hereunder.
(c) Record of Loans by Administrative Agent. The Administrative
-----------------------------------------
Agent shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or accrued interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) Evidence of Obligations. The entries made in the accounts
-------------------------
maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie
----- -----
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
--------
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Notes. The Revolving Loans outstanding to the Borrower from
-----
each Lender shall, at the written request of such Lender, be evidenced by a
promissory note of the Borrower payable to such Lender in the form of Exhibit
-------
2.8A (Master Note) or, if such Lender so requests in writing, by one or more
----
individual promissory notes of the Borrower in similar form but
25
payable in the specific foreign currencies in which the Loans may be funded
(each a "Note"). The Borrower agrees to execute and deliver to the
Administrative Agent, for the benefit of each Lender requesting one or more
promissory notes as aforesaid, an original of each such promissory note,
appropriately completed, to evidence the respective Loans made by such Lender
hereunder, within ten (10) Business Days after the Borrower receives a written
request therefor.
(f) Recording of Loans and Payments on Notes. Each holder of a
-------------------------------------------
Note shall record on its books and records or on a schedule to its appropriate
Note (and prior to any transfer of its Notes shall endorse thereon or on
schedules forming a part thereof appropriate notations to evidence) the amount
of each Loan outstanding from it to the Borrower, all payments of principal and
interest and the principal balance from time to time outstanding thereon, the
type of such Loan and, if a Eurocurrency Loan the Interest Period and interest
rate applicable thereto. Such record, whether shown on the books and records of
a holder of a Note or on a schedule to its Note, shall be prima facie evidence
as to all such matters; provided, however, that the failure of any holder to
record any of the foregoing or any error in any such record shall not limit or
otherwise affect the obligation of the Borrower to repay all Loans outstanding
to it hereunder together with accrued interest thereon. At the request of any
holder of a Note and upon such holder tendering to the Borrower the Note to be
replaced, the Borrower shall furnish a new Note to such holder to replace any
outstanding Note and at such time the first notation appearing on the schedule
on the reverse side of, or attached to, such new Note shall set forth the
aggregate unpaid principal amount of all Loans, if any, then outstanding
thereon.
Section 2.9. Optional Prepayments. The Borrower shall have the
---------------------
privilege of prepaying any Base Rate Loans without premium or penalty at any
time in whole or at any time and from time to time in part (but, if in part,
then in an amount which is equal to or greater than $1,000,000);provided,
however, that the Borrower shall have given notice of such prepayment to the
Administrative Agent no later than 12:00 p.m. on the date of such prepayment.
The Borrower shall have the privilege of prepaying any Adjusted LIBOR Loans (a)
without premium or penalty in whole or in part (but, if in part, then in an
amount which is equal to or greater than the Dollar Equivalent of $5,000,000 and
in an integral multiple of the Borrowing Multipleor such smaller amount as
needed to prepaya particular Borrowingin full) only on the last Business Day of
an Interest Period for such Loan, and (b) at any other time without premium or
penalty except for the breakage fees and funding losses that are required to be
paid pursuant to Section 2.11;provided, however, that the Borrower shall have
given notice of such prepayment to the Administrative Agent no later than 12:00
p.m. at least three (3) Business Days before the last Business Day of such
Interest Period or the proposed prepayment date. Any such prepayments shall be
made by the payment of the principal amount to be prepaid and accrued and unpaid
interest thereon to the date of such prepayment. Unless otherwise specified in
writing by the Borrower, optional prepayments shall be applied first, to the
Revolving Loans, second, to the Reimbursement Obligations with respect to
Letters of Credit, and third to any other Obligations then outstanding.
Section 2.10. Mandatory Prepayments of Loans. In the event and on each
------------------------------
occasion that the Dollar Equivalent of the aggregate principal amount of
outstanding Revolving Loans and L/C Obligations exceeds the Revolving Credit
Commitment Amount then in effect, then the
26
Borrower shall promptly prepay Revolving Loans in an aggregate amount sufficient
to eliminate such excess. Immediately upon determining the need to make any
such prepayment, the Borrower shall notify the Administrative Agent of such
required prepayment and of the identity of the particular Revolving Loans being
prepaid. If the Administrative Agent shall notify the Borrower that the
Administrative Agent has determined that any prepayment is required under this
Section 2.10, the Borrower shall make such prepayment no later than the second
Business Day following such notice. Any mandatory prepayment of Revolving Loans
pursuant hereto shall not be limited by the notice provision for prepayments set
forth in Section 2.9. Each such prepayment shall be accompanied by a payment of
all accrued and unpaid interest on the Loans prepaid and any applicable breakage
fees and funding losses pursuant to Section 2.11.
Section 2.11. Breakage Fees. If any Lender incurs any loss, cost or
--------------
expense (excluding loss of anticipated profits and other indirect or
consequential damages) by reason of the liquidation or re-employment of deposits
or other funds acquired by such Lender to fund or maintain any Eurocurrency Loan
as a result of any of the following events other than any such occurrence as a
result of a change of circumstance described in Sections 8.1 or 8.2:
(a) any payment, prepayment or conversion of any such Loan on a
date other than the last day of its Interest Period (whether by acceleration,
mandatory prepayment or otherwise);
(b) any failure to make a principal payment of any such Loan on
the due date therefor; or
(c) any failure by the Borrower to borrow, continue or prepay, or
convert to, any such Loan on the date specified in a notice given pursuant to
Section 2.3 (other than by reason of a default of such Lender),
then the Borrower shall pay to such Lender such amount as will reimburse such
Lender for such loss, cost or expense. If any Lender makes such a claim for
compensation, it shall provide to the Borrower a certificate executed by an
officer of such Lender setting forth the amount of such loss, cost or expense in
reasonable detail (including an explanation of the basis for and the computation
of such loss, cost or expense) no later than ninety (90) days after the event
giving rise to the claim for compensation, and the amounts shown on such
certificate shall be prima facie evidence of such Lender's entitlement thereto.
Within ten (10) days of receipt of such certificate, the Borrower shall pay
directly to such Lender such amount as will compensate such Lender for such
loss, cost or expense as provided herein, unless such Lender has failed to
timely give notice to the Borrower of such claim for compensation as provided
herein, in which event the Borrower shall not have any obligation to pay such
claim.
Section 2.12. Letters of Credit
-------------------
(a) Letters of Credit. Subject to the terms and conditions
-------------------
hereof, the Issuing Bank agrees to issue, from time to time prior to the
Commitment Termination Date, at the request of the Borrower and on behalf of the
Lenders and in reliance on their obligations under this Section 2.12, one or
more letters of credit (each a "Letter of Credit") for the Borrower's account in
a face amount in each case of at least $500,000 and in an aggregate undrawn face
amount for all
27
Letters of Credit at any time outstanding not to exceed the Revolving Credit
Commitment Amount; provided, that the Issuing Bank shall not be obligated to
issue a Letter of Credit pursuant to this Section 2.12 if, after the issuance
thereof, (i) the outstanding Revolving Loans and L/C Obligations would thereby
exceed the Revolving Credit Commitment Amount (determined in accordance with
Section 10.19) then in effect, or (ii) the issuance of such Letter of Credit
would violate any legal or regulatory restriction then applicable to the Issuing
Bank or any Lender as notified by the Issuing Bank or such Lender to the
Administrative Agent before the date of issuance of such Letter of Credit.
Letters of Credit and any increases and extensions thereof hereunder may be
issued in face amounts of either Dollars, Euros, Pounds, Australian Dollars,
Canadian Dollars, Singapore Dollars or Kroner; provided further, that the Dollar
Equivalent amount of the principal amount of outstanding Revolving Loans and
Letters of Credit in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars and Kroner determined, with respect to each such Revolving
Loan or Letter of Credit, in accordance with Section 10.19 on the date such
Revolving Loan is funded, continued or converted, or the date such Letter of
Credit is issued, increased and extended, as applicable, shall not exceed in the
aggregate the Foreign Currency Sublimit.
(b) Issuance Procedure. To request that the Issuing Bank issue a
-------------------
Letter of Credit, the Borrower shall deliver to the Issuing Bank and the
Administrative Agent (with a duplicate copy to an operations employee of the
Issuing Bank as designated by the Issuing Bank from time to time) a duly
executed Issuance Request substantially in the form of Exhibit 2.12A (each an
-------------
"Issuance Request"), together with a duly executed application for the relevant
Letter of Credit substantially in the form of Exhibit 2.12B (each an
--------------
"Application"), or such other computerized issuance or application procedure,
instituted from time to time by the Issuing Bank and the Administrative Agent
and agreed to by the Borrower, completed to the reasonable satisfaction of the
Issuing Bank and the Administrative Agent, and such other information as the
Issuing Bank and the Administrative Agent may reasonably request. In the event
of any irreconcilable difference or inconsistency between this Agreement and an
Application, the provisions of this Agreement shall govern. Upon receipt of a
properly completed and executed Application and any other reasonably requested
information at least three (3) Business Days prior to any requested issuance
date, the Issuing Bank will process such Application in accordance with its
customary procedures and issue the requested Letter of Credit on the requested
issuance date. The Borrower may cancel any requested issuance of a Letter of
Credit prior to the issuance thereof. The Issuing Bank will notify the
Administrative Agent and each Lender of the amount, currency, and expiration
date of each Letter of Credit it issues promptly upon issuance thereof. Each
Letter of Credit shall have an expiration date no later than four (4) Business
Days before the Commitment Termination Date. If the Issuing Bank issues any
Letters of Credit with expiration dates that automatically extend unless the
Issuing Bank gives notice that the expiration date will not so extend, the
Issuing Bank will give such notice of non-renewal before the time necessary to
prevent such automatic extension if (and will not give such notice of
non-renewal before such time unless) before such required notice date (i) the
expiration date of such Letter of Credit if so extended would be later than four
(4) Business Days before the Commitment Termination Date, (ii) the Commitment
Termination Date shall have occurred, (iii) a Default or an Event of Default
exists and the Required Lenders have given the Issuing Bank instructions not to
so permit the expiration date of such Letter of Credit to be extended, or (iv)
the Issuing Bank is so directed by the Borrower. The Issuing Bank agrees to
issue amendments
28
to any Letter of Credit increasing its amount, or extending its expiration date,
at the request of the Borrower, subject to the conditions precedent for all
Borrowings of Section 4.2 and the other terms and conditions of this Section
2.12.
(c) The Borrower's Reimbursement Obligations.
-------------------------------------------
(i) The Borrower hereby irrevocably and unconditionally agrees to
reimburse the Issuing Bank for each payment or disbursement made by the
Issuing Bank to settle its obligations under any draft drawn or other
payment made under a Letter of Credit (a "Reimbursement Obligation") within
two (2) Business Days from when such draft is paid or other payment is made
with either funds not borrowed hereunder or with a Borrowing of Revolving
Loans subject to Section 2.3 and the other terms and conditions contained
in this Agreement. The Reimbursement Obligation shall bear interest (which
the Borrower hereby promises to pay) from and after the date such draft is
paid or other payment is made until (but excluding the date) the
Reimbursement Obligation is paid at the lesser of (x) the Highest Lawful
Rate, or (y) the Base Rate (in the case of a Letter of Credit payable in
Dollars) or the rate of interest that would then be applicable hereunder to
an Adjusted LIBOR Loan with an Interest Period of one month (in the case of
a Letter of Credit payable in Euros, Pounds, Australian Dollars, Canadian
Dollars, Singapore Dollars or Kroner), in each case so long as the
Reimbursement Obligation shall not be past due, and thereafter at the
default rate per annum as set forth in Section 2.7(c), whether or not the
Commitment Termination Date shall have occurred. If any such payment or
disbursement is reimbursed to the Issuing Bank on the date such payment or
disbursement is made by the Issuing Bank, interest shall be paid on the
reimbursable amount for one (1) day. The Issuing Bank shall give the
Borrower notice of any drawing on a Letter of Credit within one (1)
Business Day after such drawing is paid.
(ii) The Borrower agrees for the benefit of the Issuing Bank and each
Lender that, notwithstanding any provision of any Application, the
obligations of the Borrower under this Section 2.12(c) and each applicable
Application shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement and each
applicable Application under all circumstances whatsoever (other than the
defense of payment in accordance with this Agreement), including, without
limitation, the following circumstances (subject in all cases to the
defense of payment in accordance with this Agreement):
(1) any lack of validity or enforceability of any of the L/C
Documents;
(2) any amendment or waiver of or any consent to depart from all
or any of the provisions of any of the L/C Documents;
(3) the existence of any claim, set-off, defense or other right
the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any person for whom a beneficiary may be acting), the
Issuing Bank, any Lender or any other Person, whether in connection
with this Agreement, another L/C Document or any unrelated
transaction;
29
(4) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(5) payment by the Issuing Bank under a Letter of Credit against
presentation to the Issuing Bank of a draft or certificate that does
not comply with the terms of the Letter of Credit; or
(6) any other act or omission to act or delay of any kind by the
Issuing Bank, any Lender or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this
Section 2.12(c), constitute a legal or equitable discharge of the
Borrower's obligations hereunder, under an Issuance Request or under
an Application;
provided, however, the foregoing shall not be construed to excuse the Issuing
Bank from liability to the Borrower to the extent of any direct damages (but
excluding consequential damages, which are hereby waived to the extent not
prohibited by applicable law) suffered by the Borrower that are caused by the
Issuing Bank's gross negligence or willful misconduct.
(d) The Participating Interests. Each Lender severally and not
-----------------------------
jointly agrees to purchase from the Issuing Bank, and the Issuing Bank hereby
agrees to sell to each Lender, an undivided percentage participating interest,
to the extent of its Percentage, in each Letter of Credit issued by, and
Reimbursement Obligation owed to, the Issuing Bank in connection with a Letter
of Credit. Upon any failure by the Borrower to pay any Reimbursement Obligation
in connection with a Letter of Credit at the time required in Sections 2.12(c)
and 2.3(c), or if the Issuing Bank is required at any time to return to the
Borrower or to a trustee, receiver, liquidator, custodian or other Person any
portion of any payment by the Borrower of any Reimbursement Obligation in
connection with a Letter of Credit, the Issuing Bank shall promptly give notice
of same to each Lender, and the Issuing Bank shall have the right to require
each Lender to fund its participation in such Reimbursement Obligation. Each
Lender (except the Issuing Bank to the extent it is also a Lender) shall pay to
the Issuing Bank an amount equal to such Lender's Percentage of such unpaid or
recaptured Reimbursement Obligation not later than the Business Day it receives
notice from the Issuing Bank to such effect, if such notice is received before
2:00 p.m., or not later than the following Business Day if such notice is
received after such time. If a Lender fails to pay timely such amount to the
Issuing Bank, it shall also pay to the Issuing Bank interest on such amount
accrued from the date payment of such amount was made by the Issuing Bank to the
date of such payment by the Lender at a rate per annum equal to the Base Rate in
effect for each such day and only after such payment shall such Lender be
entitled to receive its Percentage of each payment received on the relevant
Reimbursement Obligation and of interest paid thereon. The several obligations
of the Lenders to the Issuing Bank under this Section 2.12(d) shall be absolute,
irrevocable and unconditional under any and all circumstances whatsoever and
shall not be subject to any set-off, counterclaim or defense to payment any
Lender may have or have had against the Borrower, the Issuing Bank, and any
other Lender or any other Person whatsoever including, but not limited to, any
defense based on the failure of the demand for payment under the Letter of
Credit to conform to the terms of such Letter of Credit or the legality,
validity, regularity or enforceability of such Letter of Credit and INCLUDING,
30
BUT NOT LIMITED TO, THOSE RESULTING FROM THE ISSUING BANK'S OWN SIMPLE OR
CONTRIBUTORY NEGLIGENCE. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by any
subsequent reduction or termination of any Commitment of a Lender, and each
payment by a Lender under this Section 2.12 shall be made without any offset,
abatement, withholding or reduction whatsoever.
Section 2.13. Commitment Terminations. The Borrower shall have the
------------------------
right at any time and from time to time, upon three (3) Business Days' prior and
irrevocable written notice to the Administrative Agent, to terminate or reduce
the Commitments without premium or penalty, in whole or in part, with any
partial reduction (i) to be in an amount not less than $5,000,000 as determined
by the Borrower and in integral multiples of $5,000,000 and (ii) as to the
Commitments to be allocated ratably among the Lenders in proportion to their
respective Commitments;provided, that the Revolving Credit Commitment Amount may
not be reduced to an amount less than the sum of the aggregate principal amount
of outstanding Revolving Loans and L/C Obligations, after converting, if
necessary, any such outstanding Obligations to their Dollar Equivalent amounts
in accordance with Section 10.19 and after giving effect to payments on such
proposed termination or reduction date; provided, however, that to the extent
-------- -------
the Borrower provides to the Administrative Agent cash collateral in an amount
sufficient to cover such shortage or back to back letters of credit from a
bank(s) or financial institution(s) whose short-term unsecured debt rating is
rated A or above from either S&P or Xxxxx'x or such other bank(s) or financial
institution(s) satisfactory to the Required Lenders in an amount equal to the
undrawn face amount of any applicable outstanding Letters of Credit with an
expiration date of at least five (5) days after the expiration date of any
applicable Letter of Credit and which provide that the Administrative Agent may
make a drawing thereunder in the event that it pays a drawing under such Letter
of Credit. The Administrative Agent shall give prompt notice to each Lender of
any such termination or reduction of the Commitments. Any termination of
Commitments pursuant to this Section 2.13 is permanent and may not be
reinstated.
Section 2.14. Increase of Commitments; Additional Lenders.
-----------------------------------------------
(a) So long as no Event of Default has occurred and is continuing,
from time to time after the Initial Availability Date, the Borrower may, upon at
least 30 days' written notice to the Administrative Agent, elect to increase the
Revolving Credit Commitment Amount up to a total amount not to exceed
$1,000,000,000 (the amount of any such increase, the "Additional Commitment
Amount").
(b) The Borrower may designate one or more banks or other
financial institutions (which may be, but need not be, one or more of the
existing Lenders) which at the time agree to, in the case of any such Person
that is an existing Lender, increase its Commitment and in the case of any other
such Person (an "Additional Lender"), become a party to this Agreement;
provided, however, that any bank or financial institution that is not an
-------- -------
existing Lender must be acceptable to the Administrative Agent, which acceptance
will not be unreasonably withheld or delayed. The sum of the increases in the
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Commitments of the Additional Lenders shall not in the aggregate exceed the
Additional Commitment Amount.
31
(c) An increase in the aggregate amount of the Commitments
pursuant to this Section 2.14 shall become effective upon the receipt by the
-------------
Administrative Agent of a Joinder Agreement signed by the Borrower, by each
Additional Lender and by each other Lender whose Commitment is to be increased,
together with such evidence of appropriate corporate authorization on the part
of the Borrower with respect to the increase in the Commitments and such
opinions of counsel for the Borrower with respect to the increase in the
Commitments as the Administrative Agent may reasonably request.
(d) Upon the acceptance of any such agreement by the
Administrative Agent, the Revolving Credit Commitment Amount shall automatically
be increased by the amount of the Commitments added through such agreement and
the Commitment amounts of each Lender set forth on the signature pages hereto
shall automatically be deemed to be updated.
(e) Upon any increase in the aggregate amount of the Commitments
pursuant to this Section 2.14 that is not pro rata among all Lenders, (x) the
------------
Borrower shall prepay all outstanding Loans in their entirety, together with any
breakage fees and funding losses that are required to be paid pursuant to
Section 2.11, and, to the extent the Borrower elects to do so and subject to the
conditions specified in Article IV, the Borrower shall reborrow Loans from the
Lenders in proportion to their respective Commitments after giving effect to
such increase, and (y) effective upon such increase, the amount of the
participations held by each Lender in each Letter of Credit then outstanding
shall be adjusted such that, after giving effect to such adjustments, the
Lenders shall hold participations in each such Letter of Credit in the
proportion its respective Commitment bears to the aggregate Commitments after
giving effect to such increase.
Section 2.15. Additional Interest Costs.
---------------------------
(a) Mandatory Costs Rate. If and so long as any Lender is
----------------------
required to make special deposits with the Bank of England, to maintain reserve
asset ratios or to pay fees, in each case in respect of such Lender's
Eurocurrency Loans in any currency other than Dollars, such Lender may require
the Borrower to pay, contemporaneously with each payment of interest on each of
such Loans, additional interest on such Loan at a rate per annum equal to the
Mandatory Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit 2.15 hereto.
-------------
(b) Other Requirements for Additional Interest. If and so long as
------------------------------------------
any Lender is required to comply with reserve assets, liquidity, cash margin or
other requirements of any monetary or other authority (including any such
requirement imposed by the European Central Bank or the European System of
Central Banks, but excluding requirements reflected in the Statutory Reserve
Rate or the Mandatory Costs Rate) in respect of any of such Lender's
Eurocurrency Loans in any currency other than Dollars, such Lender may require
the Borrower to pay, contemporaneously with each payment of interest on each of
such Loans subject to such requirements, additional interest on such Loan at a
rate per annum specified by such Lender to be the cost to such Lender of
complying with such requirements in relation to such Loan.
32
(c) Determination of Amounts Due. Any additional interest owed
-------------------------------
pursuant to paragraph (a) or (b) above shall be determined by the relevant
Lender and notified to the Borrower (with a copy to the Administrative Agent) in
the form of a certificate setting forth such additional interest at least five
Business Days before each date on which interest is payable for the relevant
Loan, and such additional interest so notified to the Borrower by such Lender
shall be payable to the Administrative Agent for the account of such Lender on
each date on which interest is payable for such Loan.
(d) Limitation on Amounts Due. Subject to the provisions of
----------------------------
Section 8.3(c), failure or delay on the part of any Lender on any occasion to
demand additional interest pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such additional interest on any
subsequent occasion.
ARTICLE 3. FEES AND PAYMENTS.
Section 3.1. Fees.
----
(a) Facility Fees. The Borrower agrees to pay to the
--------------
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Facility Fee Rate on the daily amount of the Commitment
of such Lender (whether used or unused) during the period from and including the
Initial Availability Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit
Exposure after its Commitment terminates, then such facility fee shall continue
to accrue on the daily amount of such Lender's Revolving Credit Exposure from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last Business Day of March,
June, September and December of each year, commencing on December 31, 2003, on
the date(s) on which the Commitments shall have terminated and the Lenders shall
have no further Revolving Credit Exposures, and on the Maturity Date. All
facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) Utilization Fees. For any day prior to the Commitment
-----------------
Termination Date on which the Dollar Equivalent of the outstanding principal
amount of the Loans and L/C Obligations shall be greater than or equal to an
amount equal to 33% of the total Commitments (and for any day after the
termination of all the Commitments on which any Loans or L/C Obligations shall
be outstanding if the Dollar Equivalent of the outstanding principal amount
thereof on the date the Commitments terminated shall have been greater than or
equal to 33% of the total Commitments in effect on such date) the Borrower shall
pay to the Administrative Agent for the account of each Lender a utilization fee
equal to the Applicable Utilization Fee Rate multiplied by the Dollar Equivalent
of aggregate amount of such Lender's outstanding Loans and applicable Percentage
of L/C Obligations on such day. Accrued and unpaid utilization fees, if any,
shall be payable in arrears on the last Business Day of each March, June,
September and December, on the date(s) on which the Commitments shall have
terminated and there are no Loans or L/C Obligations outstanding, and on the
Maturity Date. All utilization fees
33
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) Letter of Credit Fees. Commencing upon the date of issuance,
----------------------
increase or extension of any Letter of Credit and thereafter on the last
Business Day of each March, June, September and December, the Borrower shall pay
to the Administrative Agent quarterly in advance, for the period until the next
Letter of Credit fee payment date, for the ratable account of the Lenders, a
non-refundable fee payable in Dollars equal to the Applicable Margin multiplied
by the outstanding face amount or increase of such Letter of Credit during such
upcoming period calculated on the basis of a 360 day year and actual days
elapsed and based on the then scheduled expiration date of the Letter of Credit.
For any Letter of Credit issued with a face amount in Euros, Pounds, Australian
Dollars, Canadian Dollars, Singapore Dollars or Kroner, the fees shall be
converted into Dollars using the Exchange Rate in effect two (2) Business Days
before the issuance date thereof, and thereafter five (5) Business Days before
any fee with respect thereto shall be due and payable hereunder. In addition,
the Borrower shall pay to the Issuing Bank solely for the Issuing Bank's
account, in connection with each Letter of Credit, issuance and administrative
fees and expenses for Letters of Credit as agreed from time to time between the
Issuing Bank and the Borrower.
(d) Administrative Agent Fees. The Borrower shall pay to the
---------------------------
Administrative Agent and Co-Lead Arrangers the fees from time to time agreed to
by the Borrower, the Administrative Agent, and Co-Lead Arrangers.
(e) Payment of Fees. All fees payable hereunder shall be paid on
----------------
the dates due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees, utilization fees, and Letter of
Credit fees (other than issuance and administrative fees payable to the Issuing
Bank), to the Lenders.
Section 3.2. Place and Application of Payments.
-------------------------------------
(a) All payments of principal of and interest on the Loans,
Reimbursement Obligations and all fees and other amounts payable by the Borrower
under the Credit Documents shall be made by the Borrower to the Administrative
Agent, for the benefit of the Lenders entitled to such payments, in immediately
available funds on the due date thereof (i) in the case of payments in Dollars,
no later than 2:00 p.m. at the office of the Administrative Agent in Atlanta,
Georgia, or such other location as the Administrative Agent may designate in
writing to the Borrower, and (ii) in the case of payments in Euros, Pounds,
Australian Dollars, Canadian Dollars, Singapore Dollars, or Kroner, no later
than 2:00 p.m. local time (at the bank where the applicable Foreign Currency
Payment Account is maintained) to the applicable Foreign Currency Payment
Account. Any payments received by the Administrative Agent from the Borrower
after the time specified in the preceding sentence shall be deemed to have been
received on the next Business Day. If the Borrower does not, or is unable for
any reason to, effect payment of a Loan or Reimbursement Obligation to the
Lenders in the applicable currency or if the Borrower shall default in the
payment when due of any payment in such currency, the Lenders may, at their
option, require such payment to be made to the Lenders in the Dollar Equivalent
of such currency determined in accordance with Section 10.19. With respect to
any amount due and
34
payable in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore
Dollars or Kroner, the Borrower agrees to hold the Lenders harmless from any
losses, if any, that are incurred by the Lenders arising from any change in the
value of Dollars in relation to such currency between the date such payment
became due and the date of payment thereof (other than losses incurred by any
Lender due to the gross negligence or willful misconduct of such Lender). The
Administrative Agent will, on the same day each payment is received or deemed to
have been received in accordance with this Section 3.2, cause to be distributed
like funds in like currency to each Lender owed an Obligation for which such
payment was received, pro rata based on the respective amounts of such type of
Obligation then owing to each Lender.
(b) If any payment received by the Administrative Agent under any
Credit Document is insufficient to pay in full all amounts then due and payable
to the Administrative Agent and the Lenders under the Credit Documents, such
payment shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the order set forth in Section 7.7. In
calculating the amount of Obligations owing each Lender other than for principal
and interest on Loans and Reimbursement Obligations and fees under Section 3.1,
the Administrative Agent shall only be required to include such other
Obligations that Lenders have certified to the Administrative Agent in writing
are due to such Lenders.
Section 3.3. Withholding Taxes.
------------------
(a) Payments Free of Withholding. Except as otherwise required by
----------------------------
law and subject to Section 3.3(b), each payment by the Borrower to any Lender,
Issuing Bank or Administrative Agent under this Agreement or any other Credit
Document shall be made without withholding for or on account of any present or
future taxes imposed by or within the jurisdiction in which the Borrower is
incorporated, any jurisdiction from which the Borrower makes any payment, or (in
each case) any political subdivision or taxing authority thereof or therein,
excluding, in the case of each Lender, Issuing Bank and the Administrative
Agent, the following taxes:
(i) taxes imposed on, based upon, or measured by such Lender's,
Issuing Bank's or the Administrative Agent's net income or profits, and
branch profits, franchise and similar taxes imposed on it;
(ii) taxes imposed on such Lender, Issuing Bank or the Administrative
Agent as a result of a present or former connection between the taxing
jurisdiction and such Lender, Issuing Bank or Administrative Agent, or any
affiliate thereof, as the case may be, other than a connection resulting
solely from the transactions contemplated by this Agreement;
(iii) taxes imposed as a result of the transfer by such Lender,
Issuing Bank or Administrative Agent of its interest in this Agreement or
any other Credit Document or a designation by such Lender, Issuing Bank or
the Administrative Agent (other than pursuant to Section 8.3(c)) of a new
Lending Office (other than taxes imposed as a result of any change in
treaty, law or regulation after such transfer of such Lender's, Issuing
Bank's or the Administrative Agent's interest in this Agreement or any
other Credit Document or designation of a new Lending Office);
35
(iv) taxes imposed by the United States of America (or any political
subdivision thereof or tax authority therein) upon a Lender, Issuing Bank
or Administrative Agent organized under the laws of a jurisdiction outside
of the United States, except to the extent that such tax is imposed as a
result of any change in applicable law, regulation or treaty (other than
any addition of or change in any "anti-treaty shopping," "limitation of
benefits," or similar provision applicable to a treaty) after the date
hereof, in the case of each Lender, Issuing Bank or Administrative Agent
originally a party hereto or, in the case of any Purchasing Lender (as
defined in Section 10.10) or other Issuing Bank or Administrative Agent,
after the date on which it becomes a Lender, Issuing Bank, or
Administrative Agent, as the case may be; or
(v) taxes which would not have been imposed but for (a) the failure of
any Lender, the Issuing Bank, or the Administrative Agent, as the case may
be, to provide (I) the applicable forms prescribed by the Internal Revenue
Service, as required pursuant to Section 3.3(b), or (II) any other form,
certification, documentation or proof which is reasonably requested by the
Borrower, or (b) a determination by a taxing authority or a court of
competent jurisdiction that a form, certification, documentation or other
proof provided by such Lender, Issuing Bank or the Administrative Agent to
establish an exemption from such tax, assessment or other governmental
charge is false;
(all such present or future taxes, excluding only the taxes described in the
preceding clauses (i) through (v), being hereinafter referred to as "Indemnified
Taxes"). If any such withholding is so required, the Borrower shall make the
withholding, pay the amount withheld to the appropriate governmental authority
before penalties attach thereto or interest accrues thereon and forthwith pay
such additional amount as may be necessary to ensure that the net amount
actually received by each Lender, Issuing Bank and the Administrative Agent is
free and clear of such Indemnified Taxes (including Indemnified Taxes on such
additional amount) and is equal to the amount that such Lender, Issuing Bank or
the Administrative Agent (as the case may be) would have received had
withholding of any Indemnified Tax not been made. If the Borrower pays any
Indemnified Taxes, or any penalties or interest in connection therewith, it
shall deliver official tax receipts evidencing the payment or certified copies
thereof, or other evidence of payment if such tax receipts have not yet been
received by the Borrower (with such tax receipts to be delivered within fifteen
(15) days after being actually received), to the Lender, Issuing Bank or the
Administrative Agent on whose account such withholding was made (with a copy to
the Administrative Agent if not the recipient of the original) within fifteen
(15) days of such payment. If the Administrative Agent, Issuing Bank or any
Lender pays any Indemnified Taxes, or any penalties or interest in connection
therewith, the Borrower shall reimburse the Administrative Agent, Issuing Bank
or that Lender for the payment on demand in the currency in which such payment
was made. Such Lender, Issuing Bank or the Administrative Agent shall make
written demand on the Borrower for reimbursement hereunder no later than ninety
(90) days after the earlier of (i) the date on which such Lender, Issuing Bank
or the Administrative Agent makes payment of the Indemnified Taxes, penalties
and interest, and (ii) the date on which the relevant taxing authority or other
governmental authority makes written demand upon such Lender, Issuing Bank or
the Administrative Agent for payment of the Indemnified Taxes, penalties and
interest. Any such demand shall describe in reasonable detail such Indemnified
36
Taxes, penalties or interest, including the amount thereof if then known to such
Lender, Issuing Bank, or the Administrative Agent, as the case may be. In the
event that such Lender, Issuing Bank or the Administrative Agent fails to give
the Borrower timely notice as provided herein, the Borrower shall not have any
obligation to pay such claim for reimbursement.
(b) U.S. Withholding Tax Exemptions. Upon the written request of
--------------------------------
the Borrower or the Administrative Agent, each Lender or Issuing Bank that is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) shall submit to the Borrower and the Administrative Agent, promptly
after such request, two duly completed and signed copies of either Form W-8 BEN
or any successor form (entitling such Lender or Issuing Bank to a complete
exemption from withholding under the Code on all amounts to be received by such
Lender or Issuing Bank, including fees, pursuant to the Credit Documents) or
Form W-8 ECI or any successor form (relating to all amounts to be received by
such Lender or Issuing Bank, including fees, pursuant to the Credit Documents)
of the United States Internal Revenue Service, and any other form of the United
States Internal Revenue Service reasonably necessary to accomplish exemption
from withholding obligations or to facilitate the Administrative Agent's
performance under this Agreement. Thereafter and from time to time, each such
Lender or Issuing Bank shall submit to the Borrower and the Administrative Agent
such additional duly completed and signed copies of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be required under then-current United States
law or regulations to avoid United States withholding taxes on payments in
respect of all amounts to be received by such Lender or Issuing Bank, including
fees, pursuant to the Credit Documents. Upon the request of the Borrower, each
Lender or Issuing Bank that is a United States person shall submit to the
Borrower a certificate to the effect that it is such a United States person.
(c) Inability of Lender to Submit Forms. If any Lender or Issuing
-----------------------------------
Bank determines in good faith, as a result of any change in applicable law,
regulation or treaty, or in any official application or interpretation thereof,
that (i) it is unable to submit to the Borrower or Administrative Agent any form
or certificate that such Lender or Issuing Bank is obligated to submit pursuant
to subsection (b) of this Section 3.3, (ii) it is required to withdraw or cancel
any such form or certificate previously submitted, or (iii) any such form or
certificate otherwise becomes ineffective or inaccurate, such Lender or Issuing
Bank shall promptly notify the Borrower and Administrative Agent of such fact,
and the Lender or Issuing Bank shall to that extent not be obligated to provide
any such form or certificate and will be entitled to withdraw or cancel any
affected form or certificate, as applicable.
(d) Refund of Taxes. If any Lender, Issuing Bank or the
-----------------
Administrative Agent becomes aware that it has received a refund of any
Indemnified Tax or any tax referred to in Section 10.3 with respect to which the
Borrower has paid any amount pursuant to this Section 3.3 or Section 10.3, such
Lender, Issuing Bank or the Administrative Agent shall pay the amount of such
refund (including any interest received with respect thereto) to the Borrower
within fifteen (15) days after receipt thereof. A Lender, Issuing Bank, or the
Administrative Agent shall provide, at the sole cost and expense of the
Borrower, such assistance as the Borrower may reasonably request in order to
obtain such a refund; provided, however, that neither the Administrative Agent
nor any Lender or Issuing Bank shall in any event be required to disclose
37
any information to the Borrower with respect to the overall tax position of the
Administrative Agent, Issuing Bank, or such Lender.
ARTICLE 4. CONDITIONS PRECEDENT.
Section 4.1. Initial Borrowing. The obligation of each Lender to
------------------
advance the initial Loans hereunder, and of the Issuing Bank to issue the
initial Letter of Credit hereunder, on or after the Initial Availability Date is
subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received duly executed
counterparts of this Agreement (including by facsimile or other electronic
means) and the following all in form and substance reasonably satisfactory to
the Administrative Agent and Bank of America, N.A., as a Co-Syndication Agent
and in sufficient number of signed counterparts, where applicable, to provide
one for each Lender:
(i) Certificates of Officers. Certificates of the Secretary or an
------------------------
Assistant Secretary of the Borrower containing specimen signatures of the
persons authorized to execute Credit Documents on the Borrower's behalf or any
other documents provided for herein or therein, together with (x) copies of
resolutions of the Board of Directors or other appropriate body of the Borrower
authorizing the execution and delivery of the Credit Documents, (y) copies of
the Borrower's memorandum of association and articles of association and other
publicly filed organizational documents in its jurisdiction of organization and
bylaws and other governing documents, if any, and (z) a certificate of
incorporation and good standing from the appropriate governing agency of the
Borrower's jurisdiction of organization;
(ii) Regulatory Filings and Approvals. Copies of all necessary
-----------------------------------
governmental and third party approvals, registrations, and filings in respect of
the transactions contemplated by this Agreement;
(iii) Insurance Certificate. An insurance certificate dated not
----------------------
more than ten (10) Business Days prior to the Initial Availability Date from the
Borrower describing in reasonable detail the insurance maintained by the
Borrower and its Subsidiaries as required by this Agreement;
(iv) Opinions of Counsel. The opinions of (x) Xxxxx Xxxxx LLP,
---------------------
counsel for the Borrower, in the form of Exhibit 4.1A, (y) Xxxxxxx Xxxxxxxx,
------------
Associate General Counsel of the Borrower, in the form of Exhibit 4.1B, and (z)
------------
Walkers, Cayman Islands counsel for the Borrower, in the form of Exhibit 4.1C;
------------
(v) Closing Certificate. Certificate of the President or a Vice
--------------------
President of the Borrower as to the satisfaction of all conditions set forth in
this Section 4.1; and
(vi) Existing Facilities. Evidence that all commitments of the
--------------------
lenders under the Existing Facilities are being terminated, and all amounts then
outstanding under the
38
Existing Facilities are being paid in full, simultaneously on or prior to the
Initial Availability Date.
(b) Each of the representations and warranties of the Borrower and
its Subsidiaries set forth herein and in the other Credit Documents shall be
true and correct in all material respects as of the time of such Borrowing,
except to the extent that any such representation or warranty relates solely to
an earlier date, in which case it shall have been true and correct in all
material respects as of such earlier date;
(c) No Default or Event of Default shall have occurred and be
continuing; and
(d) Payment of all fees and all expenses incurred through the
Effective Date then due and owing to the Administrative Agent, the Lenders, and
the Co-Lead Arrangers pursuant to this Agreement and as otherwise agreed in
writing by the Borrower.
Section 4.2. All Borrowings. The obligation of each Lender to make any
--------------
advance of any Loan, and of the Issuing Bank to issue any Letter of Credit
hereunder (including any increase in the amount of, or extension of the
expiration date of, any Letter of Credit) is subject to satisfaction of the
following conditions precedent (but subject to Sections 2.3(c) and 2.12(b)):
(a) Notices. The Administrative Agent shall have received (i) in
-------
the case of any Loan, the Borrowing Request required by the first sentence of
Section 2.3(a), and (ii) in the case of the issuance, extension or increase of a
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received a duly completed Issuance Request and Application for such Letter of
Credit, as the case may be, meeting the requirements of Section 2.12(b);
(b) Warranties True and Correct. In the case of any advance,
------------------------------
Borrowing, or issuance or increase of any Letter of Credit that increases the
aggregate amount of Loans and L/C Obligations outstanding after giving effect to
such advance, Borrowing or issuance or increase, or extension of the expiration
date of a Letter of Credit, each of the representations and warranties of the
Borrower and its Subsidiaries set forth herein (other than the representations
and warranties set forth in Sections 5.4 and 5.10) and in the other Credit
Documents (other than those that relate to the representations and warranties
set forth in Sections 5.4 and 5.10) shall be true and correct in all material
respects as of the time of such advance, Borrowing, or issuance or increase of
any Letter of Credit, except as a result of the transactions expressly permitted
hereunder or thereunder and except to the extent that any such representation or
warranty relates solely to an earlier date, in which case it shall have been
true and correct in all material respects as of such earlier date;
(c) No Default. No Default or Event of Default shall have
-----------
occurred and be continuing or would occur as a result of any such Borrowing; or
(d) Regulations U and X. The Borrowing to be made by the Borrower
-------------------
shall not result in the Borrower or any Lender or Issuing Bank being in
non-compliance with or in violation of Regulation U or X of the Board of
Governors of the Federal Reserve System.
39
Each acceptance by the Borrower of an advance of any Loan or of the issuance of,
increase in the amount of, or extension of the expiration date of, a Letter of
Credit shall be deemed to be a representation and warranty by the Borrower on
the date of such acceptance, that all conditions precedent to such Borrowing set
forth in this Section 4.2 and in Section 4.1 with respect to the initial
Borrowings hereunder have (except to the extent waived in accordance with the
terms hereof) been satisfied or fulfilled unless the Borrower gives to the
Administrative Agent and the Lenders written notice to the contrary, in which
case none of the Lenders shall be required to fund or convert such Loans, and
the Issuing Bank shall not be required to issue, increase the amount of or
extend the expiration date of such Letter of Credit, unless the Required Lenders
shall have previously waived in writing such non-compliance.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to each Lender, Issuing Bank and
Administrative Agent as follows:
Section 5.1. Corporate Organization. The Borrower and each of its
-----------------------
material Subsidiaries: (i) is duly organized and existing in good standing under
the laws of the jurisdiction of its organization; (ii) has all necessary
organizational power and authority to own the property and assets it uses in its
business and otherwise to carry on its present business; and (iii) is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business transacted by it or the nature of the property owned or
leased by it makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified or to be in good standing, as the case
may be, would not have a Material Adverse Effect.
Section 5.2. Power and Authority; Validity. The Borrower has the
--------------------------------
organizational power and authority to execute, deliver and carry out the terms
and provisions of the Credit Documents to which it is a party and has taken all
necessary company action to authorize the execution, delivery and performance of
such Credit Documents. The Borrower has duly executed and delivered each Credit
Document and each such Credit Document constitutes the legal, valid and binding
obligation of the Borrower enforceable against it in accordance with its terms,
subject as to enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and equitable principles.
Section 5.3. No Violation. Neither the execution, delivery or
-------------
performance by the Borrower of the Credit Documents to which it is a party nor
compliance by it with the terms and provisions thereof, nor the consummation by
it of the transactions contemplated herein or therein, will (i) contravene in
any material respect any applicable provision of any law, statute, rule or
regulation, or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) conflict with or result in any breach of any
term, covenant, condition or other provision of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien other than any Permitted Lien upon any of the property or
assets of the Borrower or any of its Subsidiaries under, the terms of any
material contractual obligation to which the Borrower or any of its Subsidiaries
is a party or by which they or any of their properties or assets are bound or to
which they may be subject, or (iii)
40
violate or conflict with any provision of the memorandum of association and
articles of association, charter, articles or certificate of incorporation,
partnership or limited liability company agreement, by-laws, or other applicable
governance documents of the Borrower or any of its Subsidiaries.
Section 5.4. Litigation. There are no actions, suits, proceedings or
----------
counterclaims (including, without limitation, derivative or injunctive actions)
pending or, to the knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries that are reasonably likely to have a Material Adverse
Effect.
Section 5.5. Use of Proceeds; Margin Regulations.
---------------------------------------
(a) Use of Proceeds. The proceeds of the Loans and the Letters of
---------------
Credit shall only be used to refinance the Existing Facilities and the Existing
Synthetic Leases, for permitted investments and acquisitions, and for capital
expenditures and other general corporate purposes of the Borrower and its
Subsidiaries.
(b) Margin Stock. Neither the Borrower nor any of its
-------------
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock. No proceeds of the Loans or the Letters of
Credit will be used for a purpose which violates Regulations T, U or X of the
Board of Governors of the Federal Reserve System. After application of the
proceeds of the Loans, the issuance of the Letters of Credit, and any
acquisitions permitted hereunder, less than 25% of the assets of each of the
Borrower and its Subsidiaries consists of "margin stock" (as defined in
Regulation U of the Board of Governors of the Federal Reserve System).
Section 5.6. Investment Company Act. Neither the Borrower nor any of
-----------------------
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Section 5.7. Public Utility Holding Company Act. Neither the Borrower
----------------------------------
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 5.8. True and Complete Disclosure. All factual information
-------------------------------
(taken as a whole) furnished by the Borrower or any of its Subsidiaries in
writing to the Administrative Agent or any Lender in connection with any Credit
Document or the Confidential Information Memorandum or any transaction
contemplated therein did not, as of the date such information was furnished (or,
if such information expressly related to a specific date, as of such specific
date), contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein (taken as a whole), in
light of the circumstances under which such information was furnished, not
misleading, except for such statements, if any, as have been updated, corrected,
supplemented, superseded or modified pursuant to a written correction or
supplement furnished to the Lenders prior to the date of this Agreement.
41
Section 5.9. Financial Statements. The financial statements heretofore
---------------------
delivered to the Lenders for the Borrower's fiscal year ending December 31,
2002, and for the Borrower's fiscal quarter and year-to-date period ending
September 30, 2003, have been prepared in accordance with GAAP applied on a
basis consistent, except as otherwise noted therein, in accordance with GAAP,
with the Borrower's financial statements for the previous fiscal year. Such
annual and quarterly financial statements fairly present in all material
respects on a consolidated basis the financial position of the Borrower as of
the dates thereof, and the results of operations for the periods indicated,
subject in the case of interim financial statements, to normal year-end audit
adjustments and omission of certain footnotes (as permitted by the SEC). As of
the Effective Date, the Borrower and its Subsidiaries, considered as a whole,
had no material contingent liabilities or material Indebtedness required under
GAAP to be disclosed in a consolidated balance sheet of the Borrower that were
not included in the financial statements referred to in this Section 5.9 or
disclosed in the notes thereto or in writing to the Administrative Agent (with a
written request to the Administrative Agent to distribute such disclosure to the
Lenders).
Section 5.10. No Material Adverse Change. There has occurred no event
--------------------------
or effect that has had or could reasonably be expected to have a Material
Adverse Effect.
Section 5.11. Taxes. The Borrower and its Subsidiaries have filed all
-----
United States federal income tax returns, and all other material tax returns
required to be filed, whether in the United States or in any foreign
jurisdiction, and have paid all governmental taxes, rates, assessments, fees,
charges and levies (collectively, "Taxes") shown to be due and payable on such
returns or on any assessments made against Borrower and its Subsidiaries or any
of their properties (other than any such assessments, fees, charges or levies
that are not more than ninety (90) days past due, or which can thereafter be
paid without penalty, or which are being contested in good faith by appropriate
proceedings and for which reserves have been provided in conformity with GAAP,
or which the failure to pay could not reasonably be expected to have a Material
Adverse Effect).
Section 5.12. Consents. On the Initial Availability Date, all consents
--------
and approvals of, and filings and registrations with, and all other actions of,
all governmental agencies, authorities or instrumentalities required to have
been obtained or made by the Borrower in order to obtain the Loans and Letters
of Credit hereunder have been or will have been obtained or made and are or will
be in full force and effect.
Section 5.13. Insurance. The Borrower and its material Subsidiaries
---------
currently maintain in effect, with responsible insurance companies, insurance
against any loss or damage to all insurable property and assets owned by it,
which insurance is of a character and in or in excess of such amounts as are
customarily maintained by companies similarly situated and operating like
property or assets (subject to self-insured retentions and deductibles), and
insurance with respect to employers' and public and product liability risks
(subject to self-insured retentions and deductibles).
Section 5.14. Intellectual Property. The Borrower and its Subsidiaries
---------------------
own or hold valid licenses to use all the patents, trademarks, permits, service
marks, and trade names that are necessary to the operation of the business of
the Borrower and its Subsidiaries as presently
42
conducted, except where the failure to own, or hold valid licenses to use, such
patents, trademarks, permits, service marks, and trade names could not
reasonably be expected to have a Material Adverse Effect.
Section 5.15. Ownership of Property. The Borrower and its Subsidiaries
---------------------
have good title to or a valid leasehold interest in all of their real property
and good title to, or a valid leasehold interest in, all of their other
property, subject to no Liens except Permitted Liens, except where the failure
to have such title or leasehold interest in such property could not reasonably
be expected to have a Material Adverse Effect.
Section 5.16. Existing Indebtedness. Schedule 5.16 contains a complete
--------------------- -------------
and accurate list of all Indebtedness outstanding as of the Effective Date, with
respect to the Borrower and its Subsidiaries, in each case in a principal amount
of $20,000,000 or more (other than the Obligations hereunder and Indebtedness
permitted by Section 6.11(b) through (k)) and permitted by Section 6.11(a), in
each case showing the aggregate principal amount thereof, the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such Indebtedness, and the scheduled payments of such Indebtedness.
Section 5.17. Existing Liens. Schedule 5.17 contains a complete and
--------------- --------------
accurate list of all Liens outstanding as of the Effective Date, with respect to
the Borrower and its Subsidiaries where the Indebtedness or other obligations
secured by such Lien is in a principal amount of $20,000,000 or more (other than
the Liens permitted by Section 6.10(b) through (r)), and permitted by Section
6.10(a), in each case showing the name of the Person whose assets are subject to
such Lien, the aggregate principal amount of the Indebtedness secured thereby,
and a description of the Agreements or other instruments creating, granting, or
otherwise giving rise to such Lien.
ARTICLE 6. COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Note,
Commitment, or L/C Obligation is outstanding hereunder, or any other Obligation
is due and payable hereunder:
Section 6.1. Corporate Existence. Each of the Borrower and its
--------------------
material Subsidiaries will preserve and maintain its organizational existence,
except (i) for the dissolution of any material Subsidiaries whose assets are
transferred to the Borrower or any of its Subsidiaries, (ii) where the failure
to preserve, renew or keep in full force and effect the existence of any
Subsidiary could not reasonably be expected to have a Material Adverse Effect,
or (iii) as otherwise expressly permitted in this Agreement.
Section 6.2. Maintenance. Each of the Borrower and its material
-----------
Subsidiaries will maintain, preserve and keep its properties and equipment
necessary to the proper conduct of its business in reasonably good repair,
working order and condition (normal wear and tear excepted) and will from time
to time make all reasonably necessary repairs, renewals, replacements, additions
and betterments thereto so that at all times such properties and equipment are
reasonably preserved and maintained, in each case with such exceptions as could
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect;
43
provided, however, that nothing in this Section 6.2 shall prevent the Borrower
or any material Subsidiary from discontinuing the operation or maintenance of
any such properties or equipment if such discontinuance is, in the judgment of
the Borrower or any material Subsidiary, as applicable, desirable in the conduct
of its business.
Section 6.3. Taxes. Each of the Borrower and its Subsidiaries will
-----
duly pay and discharge all Taxes upon or against it or its properties within
ninety (90) days after becoming due or, if later, prior to the date on which
penalties are imposed for such unpaid Taxes, unless and to the extent that (i)
the same is being contested in good faith and by appropriate proceedings and
reserves have been established in conformity with GAAP, or (ii) the failure to
effect such payment or discharge could not reasonably be expected to have a
Material Adverse Effect.
Section 6.4. ERISA. Each of the Borrower and its Subsidiaries will
-----
timely pay and discharge all obligations and liabilities arising under ERISA or
otherwise with respect to each Plan of a character which if unpaid or
unperformed might result in the imposition of a material Lien against any
properties or assets of the Borrower or any material Subsidiary and will
promptly notify the Administrative Agent upon an officer of the Borrower
becoming aware thereof, of (i) the occurrence of any reportable event (as
defined in ERISA) relating to a Plan (other than a multi-employer plan, as
defined in ERISA), so long as the event thereunder could reasonably be expected
to have a Material Adverse Effect, other than any such event with respect to
which the PBGC has waived notice by regulation; (ii) receipt of any notice from
PBGC of its intention to seek termination of any Plan or appointment of a
trustee therefor; (iii) Borrower's or any of its Subsidiaries' intention to
terminate or withdraw from any Plan if such termination or withdrawal would
result in liability under Title IV of ERISA, unless such termination or
withdrawal could not reasonably be expected to have a Material Adverse Effect;
and (iv) the receipt by the Borrower or its Subsidiaries of notice of the
occurrence of any event that could reasonably be expected to result in the
incurrence of any liability (other than for benefits), fine or penalty to the
Borrower and/or to the Borrower's Subsidiaries, or any plan amendment that could
reasonably be expected to increase the contingent liability of the Borrower and
its Subsidiaries, taken as a whole, in either case in connection with any
post-retirement benefit under a welfare plan (subject to ERISA), unless such
event or amendment could not reasonably be expected to have a Material Adverse
Effect. The Borrower will also promptly notify the Administrative Agent of (i)
any material contributions to any Foreign Plan that have not been made by the
required due date for such contribution if such default could reasonably be
expected to have a Material Adverse Effect; (ii) any Foreign Plan that is not
funded to the extent required by the law of the jurisdiction whose law governs
such Foreign Plan based on the actuarial assumptions reasonably used at any time
if such underfunding (together with any penalties likely to result) could
reasonably be expected to have a Material Adverse Effect, and (iii) any material
change anticipated to any Foreign Plan that could reasonably be expected to have
a Material Adverse Effect.
Section 6.5. Insurance. Each of the Borrower and its material
---------
Subsidiaries will maintain or cause to be maintained, with responsible insurance
companies, insurance against any loss or damage to all insurable property and
assets owned by it, such insurance to be of a character and in or in excess of
such amounts as are customarily maintained by companies similarly situated and
operating like property or assets (subject to self-insured retentions and
44
deductibles) and will (subject to self-insured retentions and deductibles)
maintain or cause to be maintained insurance with respect to employers' and
public and product liability risks.
Section 6.6. Financial Reports and Other Information.
-------------------------------------------
(a) Periodic Financial Statements and Other Documents. The
------------------------------------------------------
Borrower, its Subsidiaries and any SPVs will maintain a system of accounting in
such manner as will enable preparation of financial statements in accordance
with GAAP and will furnish to the Lenders and their respective authorized
representatives such information about the business and financial condition of
the Borrower, its Subsidiaries and any SPVs as any Lender may reasonably
request; and, without any request, will furnish to the Administrative Agent:
(i) within sixty (60) days after the end of each of the first three
(3) fiscal quarters of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal quarter and the related consolidated statements of income and
retained earnings and of cash flows for such fiscal quarter and for the
portion of the fiscal year ended with the last day of such fiscal quarter,
all of which shall be in reasonable detail or in the form filed with the
SEC, and certified by the chief financial officer of the Borrower that they
fairly present the financial condition of the Borrower and its Subsidiaries
as of the dates indicated and the results of their operations and changes
in their cash flows for the periods indicated and that they have been
prepared in accordance with GAAP, in each case, subject to normal year-end
audit adjustments and the omission of any footnotes as permitted by the SEC
(publicly filing the Borrower's Form 10-Q with the SEC in any event will
satisfy the requirements of this subsection subject to Section 6.6(b) and
shall be deemed furnished and delivered on the date such information has
been posted on the SEC website accessible through
xxxx://xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxx.xxx or such successor webpage
of the SEC thereto));
(ii) within one hundred twenty (120) days after the end of each fiscal
year of the Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash flows
for such fiscal year and setting forth consolidated comparative figures as
of the end of and for the preceding fiscal year, audited by an independent
nationally-recognized accounting firm and in the form filed with the SEC
(publicly filing the Borrower's Form 10-K with the SEC in any event will
satisfy the requirements of this subsection subject to Section 6.6(b) and
shall be deemed furnished and delivered on the date such information has
been posted on the SEC website accessible through
xxxx://xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxx.xxx or such successor webpage
of the SEC thereto));
(iii) commencing with fiscal year 2004, to the extent actually
prepared and approved by the Borrower's board of directors, a projection of
Borrower's consolidated balance sheet and consolidated income, retained
earnings and cash flows for its current fiscal year showing such projected
budget for each fiscal quarter of the Borrower ending during such year; and
45
(iv) within ten (10) days after the sending or filing thereof, copies
of all financial statements, projections, documents and other
communications that the Borrower sends to its stockholders generally or
publicly files with the SEC or any similar governmental authority (and is
publicly available); provided that publicly filing such documents with the
SEC in any event will satisfy the requirements of this subsection subject
to Section 6.6(b) and shall be deemed furnished and delivered on the date
such information has been posted on the SEC website accessible through
xxxx://xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxx.xxx or such successor webpage
of the SEC thereto.
The Administrative Agent will forward promptly to the Lenders the information
provided by the Borrower pursuant to (i) through (iv) above.
(b) Compliance Certificates. Within the sixty (60) day or one
------------------------
hundred twenty (120) day time periods set forth in subsections (i) and (ii) of
Section 6.6(a) for furnishing financial statements, the Borrower shall deliver
(i) additional information setting forth calculations excluding the effects of
any SPVs and containing such calculations for any SPVs as reasonably requested
by the Administrative Agent, and (ii) (x) a written certificate signed by the
Borrower's chief financial officer (or other financial officer of the Borrower),
in his or her capacity as such, to the effect that no Default or Event of
Default then exists or, if any such Default or Event of Default exists as of the
date of such certificate, setting forth a description of such Default or Event
of Default and specifying the action, if any, taken by the Borrower to remedy
the same, and (y) a Compliance Certificate in the form of Exhibit 6.6 showing
-----------
the Borrower's compliance with certain of the covenants set forth herein.
(c) Reserved.
---------
(d) Notice of Events Relating to Environmental Laws and Claims.
-------------------------------------------------------------
Promptly after any officer of the Borrower obtains knowledge of any of the
following, the Borrower will provide the Administrative Agent with written
notice in reasonable detail of any of the following that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim against the
Borrower, any of its Subsidiaries or any SPV or any property owned or
operated by the Borrower, any of its Subsidiaries or any SPV;
(ii) any condition or occurrence on any property owned or operated by
the Borrower, any of its Subsidiaries or any SPV that results in
noncompliance by the Borrower, any of its Subsidiaries or any SPV with any
Environmental Law; and
(iii) the taking of any material remedial action in response to the
actual or alleged presence of any Hazardous Material on any property owned
or operated by the Borrower, any of its Subsidiaries or any SPV other than
in the ordinary course of business.
46
(e) Notices of Default, Litigation, Etc. The Borrower will
---------------------------------------
promptly, and in any event within five (5) Business Days, after an officer of
the Borrower has knowledge thereof, give written notice to the Administrative
Agent of (who will in turn provide notice to the Lenders of): (i) the
occurrence of any Default or Event of Default; (ii) any litigation or
governmental proceeding of the type described in Section 5.4; (iii) any
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect; (iv) the occurrence of any event which has resulted in a breach
of, or is reasonably expected to result in a breach of, Sections 6.16 or 6.17;
and (v) any notice received by it, any Subsidiary or any SPV from the holder(s)
of Indebtedness of the Borrower, any Subsidiary or any SPV in an amount which,
in the aggregate, exceeds $50,000,000, where such notice states or claims the
existence or occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness.
Section 6.7. Lender Inspection Rights. Upon reasonable notice from the
------------------------
Administrative Agent or any Lender, the Borrower will permit the Administrative
Agent or any Lender (and such Persons as the Administrative Agent or such Lender
may reasonably designate) during normal business hours at such entity's sole
expense unless a Default or Event of Default shall have occurred and be
continuing, in which event at the Borrower's expense, to visit and inspect any
of the properties of the Borrower or any of its Subsidiaries, to examine all of
their books and records, to make copies and extracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective officers
and independent public accountants (and by this provision the Borrower
authorizes such accountants to discuss with the Administrative Agent and any
Lender (and such Persons as the Administrative Agent or such Lender may
reasonably designate) the affairs, finances and accounts of the Borrower and its
Subsidiaries), all as often, and to such extent, as may be reasonably requested.
The chief financial officer of the Borrower and/or his or her designee shall be
afforded the opportunity to be present at any meeting of the Administrative
Agent or the Lenders and such accountants. The Administrative Agent agrees to
use reasonable efforts to minimize, to the extent practicable, the number of
separate requests from the Lenders to exercise their rights under this Section
6.7 and/or Section 6.6 and to coordinate the exercise by the Lenders of such
rights.
Section 6.8. Conduct of Business. The Borrower and its Subsidiaries
---------------------
will at all times remain primarily engaged in (i) the contract drilling
business, (ii) the provision of services to the energy industry, (iii) other
existing businesses described in the Borrower's current SEC reports, or (iv) any
related businesses (each a "Permitted Business").
Section 6.9. Restrictions on Fundamental Changes. The Borrower shall
------------------------------------
not merge or consolidate with any other Person, or cause or permit any
dissolution of the Borrower or liquidation of its assets, or sell, transfer or
otherwise dispose of all or substantially all of the Borrower's assets, except
that:
(a) The Borrower may merge into, or consolidate with, any other
Person if upon the consummation of any such merger or consolidation the Borrower
is the surviving corporation to any such merger or consolidation; and
47
(b) The Borrower may sell or transfer all or substantially all of
its assets (including stock in its Subsidiaries) to any Person if such Person is
a Subsidiary of the Borrower (or a Person who will contemporaneously therewith
become a Subsidiary of the Borrower);
provided in the case of any transaction described in the preceding clauses (a)
and (b), no Default or Event of Default shall exist immediately prior to, or
after giving effect to, such transaction.
Section 6.10. Liens. The Borrower and its Subsidiaries shall not
-----
create, incur, assume or suffer to exist any Lien of any kind on any property or
asset of any kind of the Borrower or any Subsidiary, except the following
(collectively, the "Permitted Liens"):
(a) Liens existing on the date hereof (each such Lien, to the
extent it secures Indebtedness or other obligations in an aggregate amount of
$20,000,000 or more, being described on Schedule 5.17 attached hereto);
--------------
(b) Liens arising in the ordinary course of business by operation
of law, deposits, pledges or other Liens in connection with workers'
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, public or statutory obligations or other
similar charges, good faith deposits, pledges or other Liens in connection with
(or to obtain letters of credit in connection with) bids, performance,
return-of-money or payment bonds, contracts or leases to which the Borrower or
its Subsidiaries are parties or other deposits required to be made in the
ordinary course of business; provided that in each case the obligation secured
is not for Indebtedness for borrowed money and is not overdue or, if overdue, is
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor;
(c) mechanics', workmen's, materialmen's, landlords', carriers',
maritime or other similar Liens arising in the ordinary course of business (or
deposits to obtain the release of such Liens) related to obligations not overdue
for more than thirty (30) days if such Liens arise with respect to domestic
assets and for more than ninety (90) days if such Liens arise with respect to
foreign assets, or, if so overdue, that are being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP have been provided
therefor, or if such Liens otherwise could not reasonably be expected to have a
Material Adverse Effect;
(d) Liens for Taxes not more than ninety (90) days past due or
which can thereafter be paid without penalty or which are being contested in
good faith by appropriate proceedings and reserves in conformity with GAAP have
been provided therefor, or if such Liens otherwise could not reasonably be
expected to have a Material Adverse Effect;
(e) Liens imposed by ERISA (or comparable foreign laws) which are
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor, or if such Liens otherwise
could not reasonably be expected to have a Material Adverse Effect;
48
(f) Liens arising out of judgments or awards against the Borrower or any of
its Subsidiaries, or in connection with surety or appeal bonds or the like in
connection with bonding such judgments or awards, the time for appeal from which
or petition for rehearing of which shall not have expired or for which the
Borrower or such Subsidiary shall be prosecuting on appeal or proceeding for
review, and for which it shall have obtained (within thirty (30) days with
respect to a judgment or award rendered in the United States or within sixty
(60) days with respect to a judgment or award rendered in a foreign jurisdiction
after entry of such judgment or award or expiration of any previous such stay,
as applicable) a stay of execution or the like pending such appeal or proceeding
for review; provided, that the aggregate amount of uninsured or underinsured
liabilities (net of customary deductibles, and including interest, costs, fees
and penalties, if any) of the Borrower and its Subsidiaries secured by such
Liens shall not exceed $100,000,000 at any one time outstanding;
(g) Liens on fixed or capital assets acquired, constructed,
improved, altered or repaired by the Borrower or any Subsidiary and related
contracts, intangibles and other assets that are incidental thereto (including
accessions thereto and replacements thereof) or otherwise arise therefrom;
provided that (i) such Liens secure Indebtedness otherwise permitted by this
Agreement, (ii) such Liens and the Indebtedness secured thereby are incurred
prior to or within 365 days after such acquisition or the later of the
completion of such construction, improvement, alteration or repair or the date
of commercial operation of the assets constructed, improved, altered or
repaired, (iii) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing, improving, altering or repairing such fixed or capital
assets, as the case may be, and (iv) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary;
(h) Liens securing Interest Rate Protection Agreements or foreign
exchange hedging obligations incurred in the ordinary course of business and not
for speculative purposes;
(i) Liens on property existing at the time such property is
acquired by the Borrower or any Subsidiary of the Borrower and not created in
contemplation of such acquisition (or on repairs, renewals, replacements,
additions, accessions and betterments thereto), and Liens on the assets of any
Person at the time such Person becomes a Subsidiary of the Borrower and not
created in contemplation of such Person becoming a Subsidiary of the Borrower
(or on repairs, renewals, replacements, additions, accessions and betterments
thereto;
(j) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien referred
to in the foregoing subsections (a) through (i), provided, however, that the
principal amount of Indebtedness secured thereby does not exceed the principal
amount secured at the time of such extension, renewal or replacement (other than
amounts incurred to pay costs of such extension, renewal or replacement), and
that such extension, renewal or replacement is limited to the property already
subject to the Lien so extended, renewed or replaced (together with accessions
and improvements thereto and replacements thereof);
(k) rights reserved to or vested in any municipality or
governmental, statutory or public authority by the terms of any right, power,
franchise, grant, license or permit, or by any provision of law, to terminate
such right, power, franchise, grant, license or permit or to
49
purchase, condemn, expropriate or recapture or to designate a purchaser of any
of the property of a Person;
(l) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control, regulate or use any
property of a Person;
(m) rights of a common owner of any interest in property held by a
Person and such common owner as tenants in common or through other common
ownership;
(n) encumbrances (other than to secure the payment of
Indebtedness), easements, restrictions, servitudes, permits, conditions,
covenants, exceptions or reservations in any property or rights-of-way of a
Person for the purpose of roads, pipelines, transmission lines, transportation
lines, distribution lines, removal of gas, oil, coal, metals, steam, minerals,
timber or other natural resources, and other like purposes, or for the joint or
common use of real property, rights-of-way, facilities or equipment, or defects,
irregularity and deficiencies in title of any property or rights-of-way;
(o) Liens created by or resulting from zoning, planning and
environmental laws and ordinances and municipal regulations;
(p) Liens created or evidenced by or resulting from financing
statements filed by lessors of property (but only with respect to the property
so leased);
(q) Liens on property securing Non-recourse Debt;
(r) Liens on the stock or assets of SPVs;
(s) other Liens created in connection with securitization
programs, if any, of the Borrower and its Subsidiaries; and
(t) Liens (not otherwise permitted by this Section 6.10) securing
Indebtedness (or other obligations) not exceeding at the time of incurrence
thereof (together with all such other Liens securing Indebtedness (or other
obligations) outstanding pursuant to this clause (t) at such time) two and one
half percent (2.5%) of Consolidated Net Assets.
Section 6.11. Indebtedness. The Borrower and its Subsidiaries shall
------------
not incur, assume or suffer to exist any Indebtedness, except:
(a) existing Indebtedness outstanding on the Effective Date (such
Indebtedness, to the extent the principal amount thereof is $20,000,000 or more,
being described on Schedule 5.16 attached hereto), and any subsequent
--------------
extensions, renewals or refinancings thereof (i) so long as such Indebtedness is
not increased in amount (other than amounts incurred to pay costs of such
extension, renewal or refinancing), the scheduled maturity date thereof (if
prior to the Maturity Date) is not accelerated, the interest rate per annum
applicable thereto is not increased, any scheduled amortization of principal
thereunder prior to the Maturity Date is not shortened and the payments
thereunder are not increased, or (ii) such extensions, renewals or refinancings
are
50
otherwise expressly permitted by, and are effected pursuant to, another clause
in this Section 6.11 (other than clause (l) hereof);
(b) Indebtedness under the Credit Documents;
(c) intercompany loans and advances to the Borrower or its
Subsidiaries, and intercompany loans and advances from any of such Subsidiaries
or SPVs to the Borrower or any other Subsidiaries of the Borrower;
(d) Indebtedness under any Interest Rate Protection Agreements and
any Currency Rate Protection Agreements;
(e) Indebtedness of the Borrower that may be incurred, assumed or
suffered to exist without violating any section of this Agreement, including,
without limitation, Sections 6.16 and 6.17 hereof;
(f) Indebtedness of any Subsidiary of the Borrower (i) under
unsecured lines of credit for overdrafts or for working capital purposes in
foreign countries with financial institutions, and (ii) arising from the
honoring by a bank or other Person of a check, draft or similar instrument
inadvertently drawing against insufficient funds, all such Indebtedness not to
exceed $200,000,000 in the aggregate at any time outstanding, provided that
amounts under overdraft lines of credit or outstanding as a result of drawings
against insufficient funds shall be outstanding for one (1) Business Day before
being included in such aggregate amount;
(g) Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of the Borrower or is merged with or into the Borrower or
any Subsidiary of the Borrower and not incurred in contemplation of such
transaction, and extensions, renewals or refinancings thereof that do not
increase the amount of such Indebtedness (other than amounts included to pay
costs of such extension, renewal or refinancing;
(h) Indebtedness of the Borrower or any Subsidiary of the Borrower
(i) under Performance Guaranties and Performance Letters of Credit, and (ii)
with respect to letters of credit issued in the ordinary course of business;
(i) Indebtedness created in connection with securitization
programs, if any, of the Borrower and its Subsidiaries;
(j) Indebtedness of any Subsidiaries of the Borrower (not
otherwise permitted under any other clause of this Section 6.11) in an aggregate
principal amount outstanding for all Subsidiaries not exceeding at the time of
incurrence thereof (together with all such other Indebtedness outstanding
pursuant to this clause (j) at such time) ten percent (10%) of Consolidated Net
Assets (the "Subsidiary Debt Basket Amount");
(k) other Indebtedness of any Subsidiary of the Borrower not
otherwise permitted under any other clause of this Section 6.11 so long as such
Subsidiary has in force a Subsidiary Guaranty in substantially the form of
Exhibit 6.11, provided that such Subsidiary Guaranty shall
-------------
51
contain a provision that such Subsidiary Guaranty and all obligations thereunder
of the Guarantor party thereto shall be terminated upon delivery to the
Administrative Agent by the Borrower of a certificate stating that (x) the
aggregate principal amount of Indebtedness of all Subsidiaries outstanding
pursuant to the preceding clause (j) and this clause (k) is equal to or less
than the Subsidiary Debt Basket Amount, and (y) no Default or Event of Default
has occurred and is continuing; and
(l) extensions, renewals or replacements of Indebtedness permitted by
this Section 6.11 that do not increase the amount of such Indebtedness (other
than amounts incurred to pay costs of such extension, renewal or refinancing).
Section 6.12. Use of Property and Facilities; Environmental Laws. The
--------------------------------------------------
Borrower and its Subsidiaries shall comply in all material respects with all
Environmental Laws applicable to or affecting the properties or business
operations of the Borrower or any Subsidiary of the Borrower, where the failure
to comply could reasonably be expected to have a Material Adverse Effect.
Section 6.13. Transactions with Affiliates. Except as otherwise
------------------------------
specifically permitted herein, the Borrower and its Subsidiaries shall not
(except pursuant to contracts outstanding as of (i) with respect to the
Borrower, the Effective Date or (ii) with respect to any Subsidiary of the
Borrower, the Effective Date or, if later, the date such Subsidiary first became
a Subsidiary of the Borrower) enter into or engage in any material transaction
or arrangement or series of related transactions or arrangements which in the
aggregate would be material with any Controlling Affiliate, including without
limitation, the purchase from, sale to or exchange of property with, any merger
or consolidation with or into, or the rendering of any service by or for, any
Controlling Affiliate, except pursuant to the requirements of the Borrower's or
such Subsidiary's business and unless such transaction or arrangement or series
of related transactions or arrangements, taken as a whole, are no less favorable
to the Borrower or such Subsidiary (other than a wholly owned Subsidiary) than
would be obtained in an arms' length transaction with a Person not a Controlling
Affiliate.
Section 6.14. Sale and Leaseback Transactions. The Borrower will not,
-------------------------------
and will not permit any of its Subsidiaries to, enter into, assume, or suffer to
exist any Sale-Leaseback Transaction, except any such transaction that may be
entered into, assumed or suffered to exist without violating any other provision
of this Agreement, including without limitation, Sections 6.16 and 6.17.
Section 6.15. Compliance with Laws. Without limiting any of the other
--------------------
covenants of the Borrower in this Article 6, the Borrower and its Subsidiaries
shall conduct their business, and otherwise be, in compliance with all
applicable laws, regulations, ordinances and orders of any governmental or
judicial authorities;provided, however, that this Section 6.15 shall not require
the Borrower or any Subsidiary of the Borrower to comply with any such law,
regulation, ordinance or order if (x) it shall be contesting such law,
regulation, ordinance or order in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor, or (y) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
52
Section 6.16. Interest Coverage Ratio. The Borrower will not permit
-------------------------
the Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower
to be less than 3:00 to 1:00.
Section 6.17. Indebtedness to Total Tangible Capitalization Ratio.The
----------------------------------------------------
Borrower will maintain, as of the end of each fiscal quarter of the Borrower, a
ratio (expressed as a percentage) of Consolidated Indebtedness to Total Tangible
Capitalization of no greater than 50%.
Section 6.18. Termination of Existing Synthetic Leases.Within 90 days
-----------------------------------------
of the Effective Date, provided that any waiting period applicable to the
Existing Synthetic Lease in clause (i) of that definition under the
Xxxx-Xxxxx-Xxxxxx Act shall have expired or terminated and any consents or
approvals required to be obtained for such Existing Synthetic Lease under the
Xxxx-Xxxxx-Xxxxxx Act, if any, shall have been obtained and are effective, all
amounts owing at such time under the Existing Synthetic Leases shall have been
repaid and all monetary obligations thereunder have been terminated (except for
customary indemnification obligations that by their terms survive such
repayment). Within 90 days of the Effective Date, the Borrower shall deliver
written acknowledgment in form and substance reasonably satisfactory to the
Administrative Agent from the agent or arranger of such Existing Synthetic
Leases to the Administrative Agent that the obligations of the Borrower and its
Subsidiaries to make payments for application to the debt and equity portions of
the Existing Synthetic Lease shall have been satisfied.
ARTICLE 7. EVENTS OF DEFAULT AND REMEDIES.
Section 7.1. Events of Default. Any one or more of the following shall
-----------------
constitute an Event of Default:
(a) default by the Borrower in the payment of any principal amount
of any Loan or Reimbursement Obligation, any interest thereon or any fees
payable hereunder, within three (3) Business Days following the date when due;
(b) default by the Borrower in the observance or performance of
any covenant set forth in Sections 6.9, 6.10, 6.16, or 6.17;
(c) default by the Borrower in the observance or performance of
any provision hereof or of any other Credit Document not mentioned in clauses
(a) or (b) above, which is not remedied within thirty (30) days after notice
thereof to the Borrower by the Administrative Agent;
(d) any representation or warranty made or deemed made herein or
in any other Credit Document by the Borrower or any Subsidiary proves untrue in
any material respect as of the date of the making, or deemed making, thereof;
(e) (x) Indebtedness in the aggregate principal amount of
$100,000,000 of the Borrower and its Subsidiaries ("Material Indebtedness")
shall (i) not be paid at maturity (beyond any applicable grace periods), or (ii)
be declared to be due and payable or required to be prepaid,
53
redeemed or repurchased prior to its stated maturity, or (y) any default in
respect of Material Indebtedness shall occur which permits the holders thereof,
or any trustees or agents on their behalf, to accelerate the maturity of such
Indebtedness or requires such Indebtedness to be prepaid, redeemed, or
repurchased prior to its stated maturity;
(f) the Borrower or any Significant Subsidiary (i) has entered
involuntarily against it an order for relief under the United States Bankruptcy
Code or a comparable action is taken under any bankruptcy or insolvency law of
another country or political subdivision of such country, (ii) generally does
not pay, or admits its inability generally to pay, its debts as they become due,
(iii) makes a general assignment for the benefit of creditors, (iv) applies for,
seeks, consents to, or acquiesces in, the appointment of a receiver, custodian,
trustee, liquidator or similar official for it or any substantial part of its
property under the United States Bankruptcy Code or under the bankruptcy or
insolvency laws of another country or a political subdivision of such country,
(v) institutes any proceeding seeking to have entered against it an order for
relief under the United States Bankruptcy Code or any comparable law, to
adjudicate it insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fails to file an answer or other pleading denying the material
allegations of or consents to or acquiesces in any such proceeding filed against
it, (vi) makes any board of directors resolution in direct furtherance of any
matter described in clauses (i)-(v) above, or (vii) fails to contest in good
faith any appointment or proceeding described in this Section 7.1(f);
(g) a custodian, receiver, trustee, liquidator or similar official
is appointed for the Borrower or any Significant Subsidiary or any substantial
part of its property under the United States Bankruptcy Code or under the
bankruptcy or insolvency laws of another country or a political subdivision of
such country, or a proceeding described in Section 7.1(f)(v) is instituted
against the Borrower or any Significant Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed and unstayed for
a period of sixty (60) days (or one hundred twenty (120) days in the case of any
such event occurring outside the United States of America);
(h) the Borrower or any Subsidiaries of the Borrower fail within
thirty (30) days with respect to any judgments or orders that are rendered in
the United States or sixty (60) days with respect to any judgments or orders
that are rendered in foreign jurisdictions (or such earlier date as any
execution on such judgments or orders shall take place) to vacate, pay, bond or
otherwise discharge any judgments or orders for the payment of money the
uninsured portion of which is in excess of $100,000,000 in the aggregate and
which are not stayed on appeal or otherwise being appropriately contested in
good faith in a manner that stays execution;
(i) (x) the Borrower or any Subsidiary of the Borrower fails to
pay when due an amount that it is liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or a notice of intent to terminate a Plan having Unfunded
Vested Liabilities of the Borrower or any of its Subsidiaries in excess of
$100,000,000 (a "Material Plan") is filed under Title IV of ERISA; or the PBGC
institutes proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding is
instituted by a fiduciary of any Material Plan against any Borrower or any
Subsidiary to collect any liability under Section 515
54
or 4219(c)(5) of ERISA, and in each case such proceeding is not dismissed within
thirty (30) days thereafter; or a condition exists by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Material Plan must be
terminated, and (y) the occurrence of one or more of the matters in the
preceding clause (x) could reasonably be expected to result in liabilities in
excess of $100,000,000; or
(j) any Person or group of Persons acting in concert (as such
terms are used in Rule 13d-5 under the Securities Exchange Act of 1934, as
amended) shall own, directly or indirectly, beneficially or of record,
securities of the Borrower (or other securities convertible into such
securities) representing fifty percent (50%) or more of the combined voting
power of all outstanding securities of the Borrower entitled to vote in the
election of directors, other than securities having such power only by reason of
the happening of a contingency.
Section 7.2. Non-Bankruptcy Defaults. When any Event of Default (other
-----------------------
than those described in subsections (f) or (g) of Section 7.1 with respect to
the Borrower) has occurred and is continuing, the Administrative Agent shall, by
notice to the Borrower: (a) if so directed by the Required Lenders, terminate
the remaining Commitments to the Borrower hereunder on the date stated in such
notice (which may be the date thereof); (b) if so directed by the Required
Lenders, declare the principal of and the accrued interest on all outstanding
Loans to be forthwith due and payable and thereupon all outstanding Loans,
including both principal and interest thereon, shall be and become immediately
due and payable together with all other accrued amounts payable under the Credit
Documents without further demand, presentment, protest or notice of any kind,
including, but not limited to, notice of intent to accelerate and notice of
acceleration, each of which is expressly waived by the Borrower; and (c) if so
directed by the Required Lenders, demand that the Borrower immediately pay to
the Administrative Agent (to be held by the Administrative Agent pursuant to
Section 7.4) the full amount then available for drawing under each outstanding
Letter of Credit, and the Borrower agrees to immediately make such payment and
acknowledges and agrees that the Lenders, the Issuing Bank and the
Administrative Agent would not have an adequate remedy at law for failure by the
Borrower to honor any such demand and that the Administrative Agent, for the
benefit of the Lenders and the Issuing Bank, shall have the right to require the
Borrower to specifically perform such undertaking whether or not any drawings or
other demands for payment have been made under any Letter of Credit. The
Administrative Agent, after giving notice to the Borrower pursuant to this
Section 7.2, shall also promptly send a copy of such notice to the other Lenders
and the Issuing Bank, but the failure to do so shall not impair or annul the
effect of such notice.
Section 7.3. Bankruptcy Defaults. When any Event of Default described
-------------------
in subsections (f) or (g) of Section 7.1 has occurred and is continuing with
respect to the Borrower, then all outstanding Loans shall immediately become due
and payable together with all other accrued amounts payable under the Credit
Documents without presentment, demand, protest or notice of any kind, each of
which is expressly waived by the Borrower; and all obligations of the Lenders
and the Issuing Bank to extend further credit pursuant to any of the terms
hereof shall immediately terminate and the Borrower shall immediately pay to the
Administrative Agent (to be held by the Administrative Agent pursuant to Section
7.4) the full amount then available for drawing under all outstanding Letters of
Credit, the Borrower acknowledging that the Lenders, the Issuing Bank, and the
Administrative Agent would not have an adequate remedy at law for
55
failure by the Borrower to honor any such demand and that the Lenders, the
Issuing Bank, and the Administrative Agent shall have the right to require the
Borrower to specifically perform such undertaking whether or not any drawings or
other demands for payment have been made under any of the Letters of Credit.
Section 7.4. Collateral for Undrawn Letters of Credit.
---------------------------------------------
(a) If the prepayment of the amount available for drawing under
any or all outstanding Letters of Credit is required under Section 7.2 or 7.3,
the Borrower shall forthwith pay the amount required to be so prepaid, to be
held by the Administrative Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be
held by the Administrative Agent in a separate collateral account (such account,
and the credit balances, properties and any investments from time to time held
therein, and any substitutions for such account, any certificate of deposit or
other instrument evidencing any of the foregoing and all proceeds of and
earnings on any of the foregoing being collectively called the "Collateral
Account") as security for, and for application to, the reimbursement of any
drawing under any Letter of Credit then or thereafter paid by the Issuing Bank,
and to the payment of the unpaid balance of any Loans and all other due and
unpaid Obligations (collectively, the "Collateralized Obligations"). The
Collateral Account shall be held in the name of and subject to the exclusive
dominion and control of the Administrative Agent, for the benefit of the Issuing
Bank, the Administrative Agent, and the Lenders, as pledgee hereunder. If and
when required by the Borrower, the Administrative Agent shall invest and
reinvest funds held in the Collateral Account from time to time in Cash
Equivalents specified from time to time by the Borrower, provided that the
Administrative Agent is irrevocably authorized to sell on market terms any
investments held in the Collateral Account when and as required to make payments
out of the Collateral Account for application to Collateralized Obligations due
and owing from the Borrower to the Issuing Bank, the Administrative Agent, or
the Lenders. When and if (A) (i) the Borrower shall have made payment of all
Collateralized Obligations then due and payable, and (ii) all relevant
preference or other disgorgement periods relating to the receipt of such
payments have passed, or (B) no Default or Event of Default shall be continuing,
the Administrative Agent shall repay to the Borrower any remaining amounts and
assets held in the Collateral Account, provided that if the Collateral Account
is being released pursuant to clause (A) and any Letter of Credit then remains
outstanding, the Borrower, prior to or contemporaneously with such release,
shall make arrangements with respect to such outstanding Letters of Credit in
the manner described in the first sentence of Section 2.12. In addition, if the
aggregate amount on deposit with the Collateral Agent exceeds the Collateralized
Obligations then existing, then the Administrative Agent shall release and
deliver such excess amount upon the written request of the Borrower.
Section 7.5. Notice of Default. The Administrative Agent shall give
-------------------
notice to the Borrower under Section 7.2 promptly upon being requested to do so
by the Required Lenders and shall thereupon notify all the Lenders thereof.
56
Section 7.6. Expenses. The Borrower agrees to pay to the Administrative
--------
Agent, the Issuing Bank, and each Lender all reasonable out-of-pocket expenses
incurred or paid by the Administrative Agent, the Issuing Bank, or such Lender,
including reasonable attorneys' fees and court costs, in connection with any
Default or Event of Default hereunder or in connection with the enforcement of
any of the Credit Documents.
Section 7.7. Distribution and Application of Proceeds. After the
--------------------------------------------
occurrence of and during the continuance of an Event of Default, any payment to
the Administrative Agent, the Issuing Bank, or any Lender hereunder or from the
proceeds of the Collateral Account or otherwise shall be paid to the
Administrative Agent to be distributed and applied as follows (unless otherwise
agreed by the Borrower, the Administrative Agent, the Issuing Bank, and all
Lenders):
(a) First, to the payment of any and all reasonable out-of-pocket
costs and expenses of the Administrative Agent, including without limitation,
reasonable attorneys' fees and out-of-pocket costs and expenses, as provided by
this Agreement or by any other Credit Document, incurred in connection with the
collection of such payment or in respect of the enforcement of any rights of the
Administrative Agent, the Issuing Bank, or the Lenders under this Agreement or
any other Credit Document;
(b) Second, to the payment of any and all reasonable out-of-pocket
costs and expenses of the Issuing Bank and the Lenders, including, without
limitation, reasonable attorneys' fees and out-of-pocket costs and expenses, as
provided by this Agreement or by any other Credit Document, incurred in
connection with the collection of such payment or in respect of the enforcement
of any rights of the Lenders or the Issuing Bank under this Agreement or any
other Credit Document, pro rata in the proportion in which the amount of such
costs and expenses unpaid to each Lender or the Issuing Bank bears to the
aggregate amount of the costs and expenses unpaid to all Lenders and the Issuing
Bank collectively, until all such fees, costs and expenses have been paid in
full;
(c) Third, to the payment of any due and unpaid fees to the
Administrative Agent or any Lender or Issuing Bank as provided by this Agreement
or any other Credit Document, pro rata in the proportion in which the amount of
such fees due and unpaid to the Administrative Agent and each Lender and Issuing
Bank bears to the aggregate amount of the fees due and unpaid to the
Administrative Agent and all Lenders and Issuing Bank collectively, until all
such fees have been paid in full;
(d) Fourth, to the payment of accrued and unpaid interest on the
Loans or the Reimbursement Obligations to the date of such application, pro rata
in the proportion in which the amount of such interest, accrued and unpaid to
each Lender or the Issuing Bank bears to the aggregate amount of such interest
accrued and unpaid to all Lenders and the Issuing Bank collectively, until all
such accrued and unpaid interest has been paid in full;
(e) Fifth, to the payment of the outstanding due and payable
principal amount of each of the Loans and the amount of the outstanding
Reimbursement Obligations (reserving cash collateral for all undrawn face
amounts of any outstanding Letters of Credit (if Section 7.4(a) has
57
not been complied with)), pro rata in the proportion in which the outstanding
principal amount of such Loans and the amount of such outstanding Reimbursement
Obligations owing to each Lender and Issuing Bank, together (if Section 7.4(a)
has not been complied with) with the undrawn face amounts of such outstanding
Letters of Credit, bears to the aggregate amount of all outstanding Loans,
outstanding Reimbursement Obligations and (if Section 7.4(a) has not been
complied with) the undrawn face amounts of all outstanding Letters of Credit.
In the event that any such Letters of Credit, or any portions thereof, expire
without being drawn, any cash collateral therefor shall be distributed by the
Administrative Agent until the principal amount of all Loans and Reimbursement
Obligations shall have been paid in full;
(f) Sixth, to the payment of any other outstanding Obligations
then due and payable, pro rata in the proportion in which the outstanding
Obligations owing to each Lender, Issuing Bank and Administrative Agent bears to
the aggregate amount of all such Obligations until all such Obligations have
been paid in full; and
(g) Seventh, to the Borrower or as the Borrower may direct.
ARTICLE 8. CHANGE IN CIRCUMSTANCES.
Section 8.1. Change of Law.
---------------
(a) Notwithstanding any other provisions of this Agreement or any
Note, if at any time any change, after the date hereof (or, if later, after the
date the Administrative Agent or any Issuing Bank or Lender becomes the
Administrative Agent or an Issuing Bank or Lender), in applicable law or
regulation or in the interpretation thereof makes it unlawful for any Lender to
make or maintain Eurocurrency Loans or to fund any Loans in Euros, Pounds,
Australian Dollars, Canadian Dollars, Singapore Dollars, or Kroner, or the
Issuing Bank to issue any Letter of Credit or to provide payment thereunder in
Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars, or
Kroner, such Lender or Issuing Bank, as the case may be, shall promptly give
written notice thereof and of the basis therefor in reasonable detail to the
Borrower, and such Lender's or Issuing Bank's obligations to fund affected
Eurocurrency Loans or make, continue or convert such Loans under this Agreement,
or to issue any such Letters of Credit, as the case may be, shall thereupon be
suspended until it is no longer unlawful for such Lender to make or maintain
such Loans or issue such Letters of Credit.
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above in respect of any such Loan, and provided the Borrower
shall not have prepaid such Loan pursuant to Section 2.9, (i) any outstanding
such Loan of such Lender shall be automatically converted to a Base Rate Loan in
Dollars on the last day of the Interest Period then applicable thereto or on
such earlier date as required by law, and (ii) such Lender shall make or
continue its portion of any requested Borrowing of such Loan as a Base Rate Loan
in Dollars, which Base Rate Loan shall, for all other purposes, be considered
part of such Borrowing.
(c) Any Lender or Issuing Bank that has given any notice pursuant
to Section 8.1(a) shall, upon determining that it would no longer be unlawful
for it to make such Loans or issue
58
such Letters of Credit, give prompt written notice thereof to the Borrower and
the Administrative Agent, and upon giving such notice, its obligation to make,
allow conversions into and maintain such Loans or issue such Letters of Credit
shall be reinstated.
Section 8.2. Unavailability of Deposits or Inability to Ascertain LIBOR
----------------------------------------------------------
Rate. If on or before the first day of any Interest Period for any Borrowing of
----
Eurocurrency Loans the Administrative Agent determines in good faith (after
consultation with the other Lenders) that, due to changes in circumstances since
the date hereof, adequate and fair means do not exist for determining the LIBOR
Rate or such rate will not accurately reflect the cost to the Required Lenders
of funding Eurocurrency Loans in the applicable currency for such Interest
Period, the Administrative Agent shall give written notice (in reasonable
detail) of such determination and of the basis therefor to the Borrower and the
Lenders, whereupon until the Administrative Agent notifies the Borrower and
Lenders that the circumstances giving rise to such suspension no longer exist
(which the Administrative Agent shall do promptly after they do not exist), (i)
the obligations of the Lenders to fund Loans in Euro, Pounds,Australian Dollars,
Canadian Dollars, Singapore Dollars, or Kroner, or make, continue or convert
Loans as or into such Eurocurrency Loans, or to convert Base Rate Loans into
such Eurocurrency Loans, shall be suspended and (ii) each Eurocurrency Loan will
automatically on the last day of the then existing Interest Period therefor,
convert into a Base Rate Loan in Dollars.
Section 8.3. Increased Cost and Reduced Return.
-------------------------------------
(a) If, on or after the date hereof, the adoption of or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender or Issuing Bank (or its Lending Office), with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency exercising control over banks or
financial institutions generally issued after the date hereof (or, if later,
after the date the Administrative Agent, Issuing Bank, or Lender becomes the
Administrative Agent, Issuing Bank, or Lender):
(i) subjects any Lender or Issuing Bank (or its Lending Office) to any
tax, duty or other charge related to any Eurocurrency Loan, Reimbursement
Obligation, or its obligation to advance or maintain Eurocurrency Loans or
issue any Letter of Credit, or shall change the basis of taxation of
payments to any Lender or Issuing Bank (or its Lending Office) of the
principal of or interest on its Eurocurrency Loans, Letters of Credit or
Reimbursement Obligation or any participations in any thereof, or any other
amounts due under this Agreement related to its Eurocurrency Loans, Letters
of Credit, Reimbursement Obligations or participations therein, or its
obligation to make Eurocurrency Loans, issue Letters of Credit, or acquire
participations therein (except for changes with respect to taxes that are
not Indemnified Taxes pursuant to Section 3.3); or
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding for any Eurocurrency Loan any such requirement
included in an applicable Statutory Reserve Rate) against
59
assets of, deposits with or for the account of, or credit extended by, any
Lender or Issuing Bank (or its Lending Office) or imposes on any Lender or
Issuing Bank (or its Lending Office) or on the interbank market any other
condition affecting its Eurocurrency Loans, Letters of Credit, any
Reimbursement Obligations owed to it, or its participation in any thereof,
or its obligation to advance or maintain Eurocurrency Loans, issue Letters
of Credit or participate in any thereof;
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Bank (or its Lending Office) of advancing or maintaining any
Eurocurrency Loan, issuing or maintaining a Letter of Credit or participating
therein, or to reduce the amount of any sum received or receivable by such
Lender or Issuing Bank (or its Lending Office) in connection therewith under
this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank
to be material, then, subject to Section 8.3(c), from time to time, within
thirty (30) days after receipt of a certificate from such Lender or Issuing Bank
(with a copy to the Administrative Agent) pursuant to subsection (c) below
setting forth in reasonable detail such determination and the basis thereof, the
Borrower shall be obligated to pay to such Lender or Issuing Bank such
additional amount or amounts as will compensate such Lender or Issuing Bank for
such increased cost or reduction.
(b) If, after the date hereof, the Administrative Agent or any
Lender or Issuing Bank shall have reasonably determined that the adoption after
the date hereof of any applicable law, rule or regulation regarding capital
adequacy, or any change therein (including, without limitation, any revision in
the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of
the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in
any other applicable capital adequacy rules heretofore adopted and issued by any
governmental authority), or any change after the date hereof in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Administrative Agent or any Lender or Issuing Bank
(or its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or Issuing Bank's capital, or on the capital of any corporation
controlling such Lender or Issuing Bank, as a consequence of its obligations
hereunder to a level below that which such Lender or Issuing Bank could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or Issuing Bank's or its controlling corporation's policies with
respect to capital adequacy in effect immediately before such adoption, change
or compliance) by an amount reasonably deemed by such Lender or Issuing Bank to
be material, then, subject to Section 8.3(c), from time to time, within thirty
(30) days after its receipt of a certificate from such Lender or Issuing Bank
(with a copy to the Administrative Agent) pursuant to subsection (c) below
setting forth in reasonable detail such determination and the basis thereof, the
Borrower shall pay to such Lender or Issuing Bank such additional amount or
amounts as will compensate such Lender or Issuing Bank for such reduction or the
Borrower may prepay all Eurocurrency Loans of such Lender or obtain the
cancellation of all such Letters of Credit.
60
(c) The Administrative Agent and each Lender and Issuing Bank that
determines to seek compensation or additional interest under this Section 8.3 or
Section 2.15 shall give written notice to the Borrower and, in the case of a
Lender or Issuing Bank other than the Administrative Agent, the Administrative
Agent of the circumstances that entitle the Administrative Agent or such Lender
or Issuing Bank to such compensation no later than ninety (90) days after the
Administrative Agent or such Lender or Issuing Bank receives actual notice or
obtains actual knowledge of the law, rule, order or interpretation or occurrence
of another event giving rise to a claim hereunder. In any event the Borrower
shall not have any obligation to pay any amount with respect to claims accruing
prior to the ninetieth day preceding such written demand. The Administrative
Agent and each Lender and Issuing Bank shall use reasonable efforts to avoid the
need for, or reduce the amount of, such compensation, additional interest, and
any payment under Section 3.3, including, without limitation, the designation of
a different Lending Office, if such action or designation will not, in the sole
judgment of the Administrative Agent or such Lender or Issuing Bank made in good
faith, be otherwise disadvantageous to it; provided that the foregoing shall not
in any way affect the rights of any Lender or Issuing Bank or the obligations of
the Borrower under this Section 8.3 or Section 2.15, and provided further that
no Lender or Issuing Bank shall be obligated to make its Eurocurrency Loans
hereunder or fund any amount due in respect of a Letter of Credit at any office
located in the United States of America. A certificate of the Administrative
Agent or any Lender or Issuing Bank, as applicable, claiming compensation or
additional interest under this Section 8.3 or Section 2.15, and setting forth
the additional amount or amounts to be paid to it hereunder and accompanied by a
statement prepared by the Administrative Agent or such Lender or Issuing Bank,
as applicable, describing in reasonable detail the calculations thereof shall be
prima facie evidence of the correctness thereof. In determining such amount,
such Lender or Issuing Bank may use any reasonable averaging and attribution
methods.
Section 8.4. Lending Offices. The Administrative Agent and each Lender
---------------
and Issuing Bank may, at its option, elect to make or maintain its Loans and
issue its Letters of Credit hereunder at the Lending Office for each type of
Loan or Letter of Credit available hereunder or at such other of its branches,
offices or affiliates as it may from time to time elect and designate in a
written notice to the Borrower and the Administrative Agent, provided that,
except in the case of any such transfer to another of its branches, offices or
affiliates made at the request of the Borrower, the Borrower shall not be
responsible for the costs arising under Section 3.3 or 8.3 resulting from any
such transfer to the extent not otherwise applicable to such Lender or Issuing
Bank prior to such transfer.
Section 8.5. Discretion of Lender as to Manner of Funding. Subject to
--------------------------------------------
the other provisions of this Agreement, each Lender and Issuing Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans and
Letters of Credit in any manner it sees fit.
Section 8.6. Substitution of Lender or Issuing Bank. If (a) any Lender
--------------------------------------
or Issuing Bank has demanded compensation or additional interest or given notice
of its intention to demand compensation or additional interest under Section 8.3
or Section 2.15, (b) the Borrower is required to pay any additional amount to
any Lender or Issuing Bank under Section 2.11, (c) any Lender or Issuing Bank is
unable to submit any form or certificate required under Section 3.3(b) or
withdraws or cancels any previously submitted form with no substitution
therefor, (d) any
61
Lender or Issuing Bank gives notice of any change in law or regulations, or in
the interpretation thereof, pursuant to Section 8.1, (e) any Lender or Issuing
Bank has been declared insolvent or a receiver or conservator has been appointed
for a material portion of its assets, business or properties or (f) any Lender
or Issuing Bank shall seek to avoid its obligation to make or maintain Loans or
issue Letters of Credit hereunder for any reason, including, without limitation,
reliance upon 12 U.S.C. Sec. 1821(e) or (n) (1) (B), (g) any taxes referred to
in Section 3.3 have been levied or imposed (or the Borrower determines in good
faith that there is a substantial likelihood that such taxes will be levied or
imposed) so as to require withholding or deductions by the Borrower or payment
by the Borrower of additional amounts to any Lender or Issuing Bank, or other
reimbursement or indemnification of any Lender or Issuing Bank, as a result
thereof, (h) any Lender shall decline to consent to a modification or waiver of
the terms of this Agreement or any other Credit Documents requested by the
Borrower, or (i) the Issuing Bank gives notice pursuant to Section 2.12(a)(ii)
that the issuance of the Letter of Credit would violate any legal or regulatory
restriction then applicable to such Issuing Bank, then and in such event, upon
request from the Borrower delivered to such Lender or Issuing Bank, and the
Administrative Agent, such Lender shall assign, in accordance with the
provisions of Section 10.10 and an appropriately completed Assignment Agreement,
all of its rights and obligations under the Credit Documents to another Lender
or a commercial banking institution selected by the Borrower and (in the case of
a commercial banking institution) reasonably satisfactory to the Administrative
Agent, in consideration for the payments set forth in such Assignment Agreement
and payment by the Borrower to such Lender of all other amounts which such
Lender may be owed pursuant to this Agreement, including, without limitation,
Sections 2.11, 2.15, 3.3, 8.3 and 10.13.
ARTICLE 9. THE AGENTS.
Section 9.1. Appointment and Authorization of Administrative Agent and
---------------------------------------------------------
Other Agents. Each Lender hereby appoints STB as the Administrative
-------------
Agent,Citibank N.A. and Bank of America, N.A., as the Co-Syndication Agents,The
Royal Bank of Scotland plc and Bank One, NA,as the Co-Documentation Agents,
Xxxxx Fargo Bank, N. A. and UBS Loan Finance LLC as Managing Agents and The Bank
of New York, Den norske Bank ASA and HSBC Bank USA as Co-Agents under the Credit
Documents and hereby authorizes the Administrative Agent and such Other Agents
to take such action as the Administrative Agent and such Other Agents on each of
its behalf and to exercise such powers under the Credit Documents as are
delegated to the Administrative Agent and the Other Agents, respectively, by the
terms thereof, together with such powers as are reasonably incidental thereto.
Section 9.2. Rights and Powers. The Administrative Agent and the Other
-----------------
Agents shall have the same rights and powers under the Credit Documents as any
other Lender and may exercise or refrain from exercising such rights and power
as though it were not an Administrative Agent, or an Other Agent, and the
Administrative Agent and the Other Agents and their respective Controlling
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any of its Subsidiaries or Controlling
Affiliates as if it were not an Administrative Agent or an Other Agent under the
Credit Documents. The term Lender as used in all Credit Documents, unless the
context otherwise clearly requires, includes
62
the Administrative Agent and the Other Agents in their respective individual
capacities as a Lender.
Section 9.3. Action by Administrative Agent and the Other Agents. The
---------------------------------------------------
obligations of the Administrative Agent and the Other Agents under the Credit
Documents are only those expressly set forth therein. Without limiting the
generality of the foregoing, the Administrative Agent shall not be required to
take any action concerning any Default or Event of Default, except as expressly
provided in Sections 7.2 and 7.4. Unless and until the Required Lenders (or, if
required by Section 10.11, all of the Lenders) give such direction (including,
without limitation, the giving of a notice of default as described in Section
7.1(c)), the Administrative Agent may, except as otherwise expressly provided
herein or therein, take or refrain from taking such actions as it deems
appropriate and in the best interest of all the Lenders. In no event, however,
shall the Administrative Agent or the Other Agents be required to take any
action in violation of applicable law or of any provision of any Credit
Document, and each of the Administrative Agent and the Other Agents shall in all
cases be fully justified in failing or refusing to act hereunder or under any
other Credit Document unless it first receives any further assurances of its
indemnification from the Lenders that it may require, including prepayment of
any related expenses and any other protection it requires against any and all
costs, expenses, and liabilities it may incur in taking or continuing to take
any such action. The Administrative Agent shall be entitled to assume that no
Default or Event of Default, other than non-payment of any scheduled principal
or interest payment due hereunder, exists unless notified in writing to the
contrary by a Lender or the Borrower. In all cases in which the Credit
Documents do not require the Administrative Agent or the Other Agents to take
specific action, the Administrative Agent and each of the Other Agents shall be
fully justified in using its discretion in failing to take or in taking any
action thereunder. Any instructions of the Required Lenders, or of any other
group of Lenders called for under specific provisions of the Credit Documents,
shall be binding on all the Lenders and holders of Notes.
Section 9.4. Consultation with Experts. Each of the Administrative
---------------------------
Agent and the Other Agents may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section 9.5. Indemnification Provisions; Credit Decision. Neither the
-------------------------------------------
Administrative Agent, the Other Agents nor any of their directors, officers,
agents, or employees shall be liable for any action taken or not taken by them
in connection with the Credit Documents (i) with the consent or at the request
of the Required Lenders (or, if required by Section 10.11, all of the Lenders),
or (ii) in the absence of their own gross negligence or willful misconduct.
Neither the Administrative Agent, the Other Agents nor any of their directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement, any other Credit Document or any
Borrowing; (ii) the performance or observance of any of the covenants or
agreements of the Borrower or any Subsidiary contained herein or in any other
Credit Document; (iii) the satisfaction of any condition specified in Article 4,
except receipt of items required to be delivered to the Administrative Agent; or
(iv) the validity, effectiveness, genuineness, enforceability, value, worth or
collectability hereof or of any other Credit Document or of any
63
other documents or writings furnished in connection with any Credit Document;
and the Administrative Agent and the Other Agents make no representation of any
kind or character with respect to any such matters mentioned in this sentence.
The Administrative Agent and the Other Agents may execute any of their duties
under any of the Credit Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders or any other Person
for the default or misconduct of any such agents or attorneys-in-fact selected
with reasonable care. The Administrative Agent and the Other Agents shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
other document or statement (whether written or oral) believed by it to be
genuine or to be sent by the proper party or parties. In particular and without
limiting any of the foregoing, the Administrative Agent and the Other Agents
shall have no responsibility for confirming the accuracy of any Compliance
Certificate or other document or instrument received by any of them under the
Credit Documents. The Administrative Agent and the Other Agents may treat the
payee of any Note as the holder thereof until written notice of transfer shall
have been filed with such Administrative Agent signed by such owner in form
satisfactory to such Administrative Agent. Each Lender acknowledges that it has
independently, and without reliance on the Administrative Agent, the Other
Agents or any other Lender, obtained such information and made such
investigations and inquiries regarding the Borrower and its Subsidiaries as it
deems appropriate, and based upon such information, investigations and
inquiries, made its own credit analysis and decision to extend credit to the
Borrower in the manner set forth in the Credit Documents. It shall be the
responsibility of each Lender to keep itself informed about the creditworthiness
and business, properties, assets, liabilities, condition (financial or
otherwise) and prospects of the Borrower and its Subsidiaries, and the
Administrative Agent and the Other Agents shall have no liability whatsoever to
any Lender for such matters. The Administrative Agent and the Other Agents
shall have no duty to disclose to the Lenders information that is not required
by any Credit Document to be furnished by the Borrower or any Subsidiaries to
such Agent at such time, but is voluntarily furnished to such Agent (either in
their respective capacity as Administrative Agent or the Other Agents or in
their individual capacity).
Section 9.6. Indemnity. The Lenders shall ratably, in accordance with
---------
their Percentages, indemnify and hold the Administrative Agent, the Other
Agents, and their directors, officers, employees, agents and representatives
harmless from and against any liabilities, losses, costs or expenses suffered or
incurred by it under any Credit Document or in connection with the transactions
contemplated thereby, regardless of when asserted or arising, except to the
extent they are promptly reimbursed for the same by the Borrower and except to
the extent that any event giving rise to a claim was caused by the gross
negligence or willful misconduct of the party seeking to be indemnified. The
obligations of the Lenders under this Section 9.6 shall survive termination of
this Agreement.
Section 9.7. Resignation of Agents and Successor Agents. The
-----------------------------------------------
Administrative Agent and the Other Agents may resign at any time and shall
resign upon any removal thereof as a Lender pursuant to the terms of this
Agreement upon at least thirty (30) days' prior written notice to the Lenders
and the Borrower. Any resignation of the Administrative Agent shall not be
effective until a replacement therefor is appointed pursuant to the terms
hereof. Upon any such resignation of the Administrative Agent or any Other
Agent, the Required Lenders and, so long as no Event of Default shall then
exist, with the consent of the Borrower (which consent shall not
64
be unreasonably withheld or delayed) shall have the right to appoint a successor
Administrative Agent or Other Agent, as the case may be. If no successor
Administrative Agent or Other Agent, as the case may be, shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's or Other
Agent's giving of notice of resignation, then the retiring Administrative Agent
or Other Agent, as the case may be, may, on behalf of the Lenders and, so long
as no Event of Default shall then exist, with the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed) appoint a successor
Administrative Agent or Other Agent, as the case may be, which shall be any
Lender hereunder or any commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance of its appointment as
the Administrative Agent or the Other Agent hereunder, such successor
Administrative Agent or Other Agent, as the case may be, shall thereupon succeed
to and become vested with all the rights and duties of the retiring
Administrative Agent or Other Agent, as the case may be, under the Credit
Documents, and the retiring Administrative Agent or Other Agent shall be
discharged from its duties and obligations thereunder. After any retiring
Administrative Agent's or Other Agent's resignation hereunder as Administrative
Agent or Other Agent, as the case may be, the provisions of this Article 9 and
all protective provisions of the other Credit Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent or Other Agent, as the case may be.
ARTICLE 10. MISCELLANEOUS.
Section 10.1. No Waiver. No delay or failure on the part of the
----------
Administrative Agent or any Lender or Issuing Bank, or on the part of the holder
or holders of any Notes, in the exercise of any power, right or remedy under any
Credit Document shall operate as a waiver thereof or as an acquiescence in any
default, nor shall any single or partial exercise thereof preclude any other or
further exercise of any other power, right or remedy. To the fullest extent
permitted by applicable law, the powers, rights and remedies under the Credit
Documents of the Administrative Agent, the Lenders, the Issuing Bank and the
holder or holders of any Notes are cumulative to, and not exclusive of, any
powers, rights or remedies any of them would otherwise have.
Section 10.2. Non-Business Day. Subject to Section 2.4, if any payment
----------------
of principal or interest on any portion of any Loan, any Reimbursement
Obligation, or any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such portion
of any Loan, any Reimbursement Obligation, or other Obligation bears for the
period prior to maturity shall continue to accrue in the manner set forth herein
on such Obligation from the stated due date thereof to the next succeeding
Business Day, on which the same shall instead be payable.
Section 10.3. Documentary Taxes. The Borrower agrees that it will pay
-----------------
any documentary, stamp or similar taxes payable with respect to any Credit
Document, including interest and penalties, in the event any such taxes are
assessed irrespective of when such assessment is made, other than any such taxes
imposed as a result of any transfer of an interest in
65
a Credit Document. Each Lender and Issuing Bank that determines to seek
compensation under this Section 10.3 shall give written notice to the Borrower
and, in the case of a Lender or Issuing Bank other than the Administrative
Agent, the Administrative Agent of the circumstances that entitle such Lender or
Issuing Bank to such compensation no later than ninety (90) days after such
Lender or Issuing Bank receives actual notice or obtains actual knowledge of the
law, rule, order or interpretation or occurrence of another event giving rise to
a claim hereunder. In any event, the Borrower shall not have any obligation to
pay any amount with respect to claims accruing prior to the 90th day preceding
such written demand.
Section 10.4. Survival of Representations. All representations and
-----------------------------
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as the Borrower has any Obligation hereunder or any
Commitment hereunder is in effect.
Section 10.5. Survival of Indemnities. All indemnities and all
-------------------------
provisions relative to reimbursement to the Lenders and Issuing Bank of amounts
sufficient to protect the yield of the Lenders and Issuing Bank with respect to
the Loans and the L/C Obligations, including, but not limited to, Section 2.11,
Section 2.15, Section 3.3, Section 7.6, Section 8.3, Section 10.3, and Section
10.13 hereof, shall, subject to Section 8.3(c), survive the termination of this
Agreement and the other Credit Documents and the payment of the Loans and all
other Obligations and, with respect to any Lender or Issuing Bank, any
replacement by the Borrower of such Lender pursuant to the terms hereof, in each
case for a period of one (1) year.
Section 10.6. Setoff. In addition to any rights now or hereafter
------
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of, and throughout the continuance of, any Event of Default,
each Lender and Issuing Bank and each subsequent holder of any Note is hereby
authorized by the Borrower at any time or from time to time, without notice to
the Borrower or any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and to apply any and all deposits (general or
special, including, but not limited to, Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts, and
in whatever currency denominated) and any other Indebtedness at any time owing
by that Lender or that subsequent holder to or for the credit or the account of
the Borrower, whether or not matured, against and on account of the due and
unpaid obligations and liabilities of the Borrower to that Lender or Issuing
Bank or that subsequent holder under the Credit Documents, irrespective of
whether or not that Lender or Issuing Bank or that subsequent holder shall have
made any demand hereunder. Each Lender or Issuing Bank shall promptly give
notice to the Borrower of any action taken by it under this Section
10.6,provided that any failure of such Lender or Issuing Bank to give such
notice to the Borrower shall not affect the validity of such setoff. Each
Lender and Issuing Bank agrees with each other Lender and Issuing Bank a party
hereto that if such Lender or Issuing Bank receives and retains any payment,
whether by setoff or application of deposit balances or otherwise, in respect of
the Loans or L/C Obligations in excess of its ratable share of payments on all
such Obligations then owed to the Lenders and Issuing Bank hereunder, then such
Lender or Issuing Bank shall purchase for cash at face value, but without
recourse, ratably from each of the other Lenders such amount of the Loans and
L/C Obligations and participations therein held by each such other Lender as
shall be
66
necessary to cause such Lender or Issuing Bank to share such excess payment
ratably with all the other Lenders;provided, however, that if any such purchase
is made by any Lender or Issuing Bank, and if such excess payment or part
thereof is thereafter recovered from such purchasing Lender or Issuing Bank, the
related purchases from the other Lenders or Issuing Bank shall be rescinded
ratably and the purchase price restored as to the portion of such excess payment
so recovered, but without interest.
Section 10.7. Notices. Except as otherwise specified herein, all
-------
notices under the Credit Documents shall be in writing (including cable,
telecopy or telex) and shall be given to a party hereunder at its address,
telecopier number or telex number set forth below or such other address,
telecopier number or telex number as such party may hereafter specify by notice
to the Administrative Agent and the Borrower, given by courier, by United States
certified or registered mail, by telegram or by other telecommunication device
capable of creating a written record of such notice and its receipt. Notices
under the Credit Documents to the Lenders shall be addressed to their respective
addresses, telecopier or telex number, or telephone numbers set forth on their
applicable Administrative Questionnaire, and to the Borrower, the Administrative
Agent and the Issuing Bank to:
The Borrower: Transocean Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
Xxxxx Xxxxx LLP
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx Xxxxx
Telephone No. (000) 000-0000
Fax No.: (000) 000-0000
To the Administrative Agent: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx XxXxxxxx
Telecopy Number: (000) 000-0000
67
With a copy to: SunTrust Bank
Agency Services
000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Xx. Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
and
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, X. E./Mail Code 3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy Number: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section 10.7 or pursuant to Section 10.10 and a confirmation
of receipt of such telecopy has been received by the sender, (ii) if given by
courier, when delivered, (iii) if given by mail, five (5) days after such
communication is deposited in the mail, certified or registered with return
receipt requested, or (iv) if given by any other means, when delivered at the
addresses specified in this Section 10.7, or pursuant to Section 10.10; provided
that any notice given pursuant to Article 2 shall be effective only upon receipt
and, provided further, that any notice that but for this proviso would be
effective after the close of business on a Business Day or on a day that is not
a Business Day shall be effective at the opening of business on the next
Business Day.
Section 10.8. Counterparts. This Agreement may be executed in any
------------
number of counterparts, and by the different parties on different counterpart
signature pages, each of which when executed shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
Agreement.
Section 10.9. Successors and Assigns. This Agreement shall be binding
----------------------
upon the Borrower, each of the Lenders, the Issuing Bank, the Administrative
Agent, the Other Agents, and their respective successors and assigns, and shall
inure to the benefit of the Borrower, each of the Lenders, the Issuing Bank, the
Administrative Agent, the Other Agents, and their respective successors and
assigns, including any subsequent holder of any Note;provided, however, the
Borrower may not assign any of its rights or obligations under this Agreement or
any other Credit Document without the written consent of all Lenders, the
Issuing Bank, the Administrative Agent and the Other Agents, and the
Administrative Agent and the Other Agents may not assign any of their respective
rights or obligations under this Agreement or any Credit
68
Document except in accordance with Article 9 and no Lender or Issuing Bank may
assign any of its rights or obligations under this Agreement or any other Credit
Document except in accordance with Section 10.10. Any Lender or Issuing Bank
may at any time pledge or assign all or any portion of its rights under this
Agreement and the Notes issued to it (i) to a Federal Reserve Bank to secure
extensions of credit by such Federal Reserve Bank to such Lender, or (ii) in the
case of any Lender that is a fund comprised in whole or in part of commercial
loans, to a trustee for such fund in support of such Lender's obligations to
such trustee;provided that no such pledge or assignment shall release a Lender
or Issuing Bank from any of its obligations hereunder or substitute any such
Federal Reserve Bank or such trustee for such Lender as a party hereto and the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely with such Lender or Issuing Bank in connection with the rights and
obligations of such Lender and Issuing Bank under this Agreement.
Section 10.10. Sales and Transfers of Borrowing and Notes;
------------------------------------------------
Participations in Borrowings and Notes.
------------------------------------------
(a) Any Lender may, upon written notice to the Borrower and the
Administrative Agent, at any time sell to one or more commercial banking or
other financial or lending institutions ("Participants") participating interests
in any Commitment of such Lender hereunder, provided that no Lender may sell any
participating interests in any such Commitment hereunder without also selling to
such Participant the appropriate pro rata share of all such Lender's Commitment,
and provided further that no Lender shall transfer, grant or assign any
participation under which the Participant shall have rights to vote upon or to
consent to any matter to be decided by the Lenders or the Required Lenders
hereunder or under any other Credit Document or to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) increase the amount of such Lender's Commitment
and such increase would affect such Participant, (ii) reduce the principal of,
or interest on, any of such Lender's Borrowings, or any fees or other amounts
payable to such Lender hereunder and such reduction would affect such
Participant, (iii) postpone any date fixed for any scheduled payment of
principal of, or interest on, any of such Lender's Borrowings, or any fees or
other amounts payable to such Lender hereunder and such postponement would
affect such Participant, or (iv) release any collateral security for any
Obligation, except as otherwise specifically provided in any Credit Document.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement, the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
such Lender shall retain the sole right to enforce the obligations of the
Borrower under any Credit Document. The Borrower agrees that if amounts
outstanding under this Agreement and the Notes shall have been declared or shall
have become due and payable in accordance with Section 7.2 or 7.3 upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that such right of setoff shall be subject to
the obligation of such Participant
69
to share with the Lenders, and the Lenders agree to share with such Participant,
as provided in Section 10.6. The Borrower also agrees that each Participant
shall be entitled to the benefits of and have the obligations under Sections
2.11, 2.15, 3.3 and 8.3 with respect to its participation in the Commitments and
the Borrowings outstanding from time to time, provided that no Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred if no participation had been transferred and
provided, further, that Sections 8.3(c) and 8.6 shall apply to the transferor
Lender with respect to any claim by any Participant pursuant to Section 2.11,
2.15, 3.3 or 8.3 as fully as if such claim was made by such Lender. Anything
herein to the contrary notwithstanding, the Borrower shall not, at any time, be
obligated to pay to any Lender any sum in excess of the sum the Borrower would
have been obligated to pay to such Lender hereunder if such Lender had not sold
any participation in its rights and obligations under this Agreement or any
other Credit Document.
(b) Any Lender may at any time sell to (i) any of such Lender's
affiliates or to any other Lender or any affiliate thereof that, in each case,
is a commercial banking or other financial or lending institution not subject to
Regulation T of the Board of Governors of the Federal Reserve System and, (ii)
with the prior written consent of the Administrative Agent and the Borrower
(which shall not be unreasonably withheld or delayed), to one or more commercial
banking or other financial or lending institutions not subject to Regulation T
of the Board of Governors of the Federal Reserve System (any of (i) or (ii), a
"Purchasing Lender"), all or any part of its rights and obligations under this
Agreement and the other Credit Documents, pursuant to an Assignment Agreement in
the form attached as Exhibit 10.10, executed by such Purchasing Lender and such
-------------
transferor Lender (and, in the case of a Purchasing Lender which is not then a
Lender or an affiliate thereof, by the Borrower and the Administrative Agent)
and delivered to the Administrative Agent; provided that each such sale to a
Purchasing Lender (other than an existing Lender) shall be in the Dollar
Equivalent amount of $5,000,000 or more, or if in a lesser amount or if as a
result of such sale the sum of the unfunded Commitment of such Lender plus the
aggregate principal amount of such Lender's Loans and participations in Letters
of Credits would be less than the Dollar Equivalent amount of $5,000,000
(calculated as hereinafter set forth), such sale shall be of all of such
Lender's rights and obligations under this Agreement and all of the other Credit
Documents payable to it to one Purchasing Lender. Notwithstanding the
requirement of the Borrower's consent set forth above, but subject to all of the
other terms and conditions of this Section 10.10(b), any Lender may sell to one
or more commercial banking or other financial or lending institutions not
subject to Regulation T of the Board of Governors of the Federal Reserve System,
all or any part of their rights and obligations under this Agreement and the
other Credit Documents with only the consent of the Administrative Agent (which
shall not be unreasonably withheld or delayed) if an Event of Default shall have
occurred and be continuing. Upon such execution, delivery and acceptance, from
and after the effective date of the transfer determined pursuant to such
Assignment Agreement, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Assignment Agreement, have the rights
and obligations of a Lender hereunder with a Commitment as set forth herein and
(y) the transferor Lender thereunder shall, to the extent provided in such
Assignment Agreement, be released from its obligations under this Agreement
(and, in the case of an Assignment Agreement covering all or the remaining
portion of a transferor Lender's rights and obligations under this Agreement,
such transferor Lender shall cease to be a party hereto). Such Assignment
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Agreement shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender and the
resulting adjustment of Commitments and Percentages arising from the purchase by
such Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement, the Notes and the other Credit
Documents. On or prior to the effective date of the transfer determined
pursuant to such Assignment Agreement, the Borrower, at its own expense, shall
upon reasonable notice from the Administrative Agent execute and deliver to the
Administrative Agent in exchange for any surrendered Note, a new Note as
appropriate to the order of such Purchasing Lender in an amount equal to the
Commitments assumed by it pursuant to such Assignment Agreement, and, if the
transferor Lender has retained a Commitment or Borrowing hereunder, a new Note
to the order of the transferor Lender in an amount equal to the Commitments or
Borrowings retained by it hereunder. Such new Notes shall be dated the Initial
Availability Date and shall otherwise be in the form of the Notes replaced
thereby. The Notes surrendered by the transferor Lender shall be returned by
the Administrative Agent to the Borrower marked "cancelled."
(c) Upon its receipt of an Assignment Agreement executed by a
transferor Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an affiliate thereof, by the Administrative
Agent and, to the extent required by Section 10.10(b), by the Borrower),
together with payment by the transferor Lender to the Administrative Agent
hereunder of a registration and processing fee of $1,000 (unless the Borrower is
replacing such Lender pursuant to the terms hereof, in which event such fee
shall be paid by the Borrower), the Administrative Agent shall (i) promptly
accept such Assignment Agreement, and (ii) on the effective date of the transfer
determined pursuant thereto give notice of such acceptance and recordation to
the Lenders and the Borrower. The Borrower shall not be responsible for such
registration and processing fee or any costs or expenses incurred by any Lender,
any Purchasing Lender or the Administrative Agent in connection with such
assignment except as provided above.
(d) If, pursuant to this Section 10.10 any interest in this
Agreement or any Loan or Note is transferred to any transferee which is
organized under the laws of any jurisdiction other than the United States of
America or any State thereof, the transferor Lender shall cause such transferee,
concurrently with the effectiveness of such transfer, (i) to represent to the
transferor Lender (for the benefit of the transferor Lender, the Administrative
Agent and the Borrower) that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the Borrower or the
transferor Lender with respect to any payments to be made to such transferee in
respect of the Loans or the L/C Obligations, (ii) to furnish to the transferor
Lender (and, in the case of any Purchasing Lender, the Administrative Agent and
the Borrower) two duly completed and signed copies of either U.S. Internal
Revenue Service Form W-8 BEN or U.S. Internal Revenue Service Form W-8 ECI or
such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities (wherein such transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder), and (iii) to agree (for the benefit of the transferor Lender, the
Administrative Agent and the Borrower) to provide the transferor Lender (and, in
the case of any Purchasing Lender, the Administrative Agent and the Borrower)
new forms as contemplated by Section 3.3(b) upon the expiration or obsolescence
of any previously delivered form and comparable statements in
71
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(e) Notwithstanding any other provisions of this Section 10.10, no
transfer or assignment of the interests of any Lender hereunder or any grant of
participations therein shall be permitted if such transfer, assignment or grant
would require the Borrower to file a registration statement with the SEC or to
qualify the Loans, the Notes or any other Obligations under the securities laws
of any jurisdiction.
Section 10.11. Amendments, Waivers and Consents. Any provision of the
--------------------------------
Credit Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrower, (b) the Required
Lenders, and (c) if the rights or duties of the Administrative Agent or the
Other Agents are affected thereby, the Administrative Agent or the Other Agents,
as the case may be,provided that:
(i) no amendment or waiver shall (A) increase the Revolving Credit
Commitment Amount without the consent of all Lenders or increase any
Commitment of any Lender without the consent of such Lender, or (B)
postpone the Commitment Termination Date or Maturity Date without the
consent of all Lenders, or reduce the amount of or postpone the date for
any scheduled payment of any principal of or interest (including, without
limitation, any reduction in the rate of interest unless such reduction is
otherwise provided herein) on any Loan or Reimbursement Obligation or of
any fee payable hereunder, without the consent of each Lender owed any such
Obligation, or (C) release any Collateral for any Collateralized
Obligations (other than as provided in accordance with Section 7.4) without
the consent of all Lenders; and
(ii) no amendment or waiver shall, unless signed by each Lender,
change the provisions of this Section 10.11 or the definition of Required
Lenders or the number of Lenders required to take any action under any
other provision of the Credit Documents.
Section 10.12. Headings. Section headings used in this Agreement are
--------
for reference only and shall not affect the construction of this Agreement.
Section 10.13. Legal Fees, Other Costs and Indemnification. The
------------------------------------------------
Borrower, upon demand by the Administrative Agent, agrees to pay the reasonable
fees and disbursements of legal counsel to the Administrative Agent in
connection with the preparation and execution of the Credit Documents (which
shall be in an amount agreed in writing by the Borrower), and any amendment,
waiver or consent related thereto, whether or not the transactions contemplated
therein are consummated. The Borrower further agrees to indemnify each Lender,
Issuing Bank, the Administrative Agent, the Other Agents, and their respective
directors, officers, employees and attorneys (collectively, the "Indemnified
Parties"), against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all reasonable
attorneys' fees and other reasonable expenses of litigation or preparation
therefor, whether or not such Indemnified Party is a party thereto) which any
of them may pay or incur as a result of (a) any action, suit or proceeding by
any third party or Governmental Authority against such
72
Indemnified Party and relating to any Credit Document, the Loans, any Letter of
Credit, or the application or proposed application by any of the Borrower of the
proceeds of any Loan or use of any Letter of Credit,REGARDLESS OF WHETHER SUCH
CLAIMS OR ACTIONS ARE FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED SIMPLE OR
CONTRIBUTORY NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES AND/OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR ATTORNEYS, (b) any investigation of
any third party or any Governmental Authority involving any Lender (as a lender
hereunder), Issuing Bank, or the Administrative Agent or the Other Agents (in
such capacity hereunder) and related to any use made or proposed to be made by
the Borrower of the proceeds of any Loan, or use of any Letter of Credit or any
transaction financed or to be financed in whole or in part, directly or
indirectly with the proceeds of any Loan or Letter of Credit, and (c) any
investigation of any third party or any Governmental Authority, litigation or
proceeding involving any Lender (as a lender hereunder) or the Administrative
Agent or the Other Agents (in such capacity hereunder) and related to any
environmental cleanup, audit, compliance or other matter relating to any
Environmental Law or the presence of any Hazardous Material (including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses or
claims asserted or arising under any Environmental Law) with respect to the
Borrower, regardless of whether caused by, or within the control of, the
Borrower;provided, however, that the Borrower shall not be obligated to
indemnify any Indemnified Party for any of the foregoing arising out of such
Indemnified Party's gross negligence or willful misconduct, as determined
pursuant to a judgment of a court of competent jurisdiction or as expressly
agreed in writing by such Indemnified Party. The Borrower, upon demand by the
Administrative Agent, the Other Agents or a Lender or Issuing Bank at any time,
shall reimburse such Agent or such Lender or Issuing Bank for any reasonable
legal or other expenses incurred in connection with investigating or defending
against any of the foregoing, except if the same is excluded from
indemnification pursuant to the provisions of the preceding sentence. Each
Indemnified Party agrees to contest any indemnified claim if requested by the
Borrower, in a manner reasonably directed by the Borrower, with counsel selected
by the Indemnified Party and approved by the Borrower, which approval shall not
be unreasonably withheld or delayed. Any Indemnified Party that proposes or
intends to settle or compromise any such indemnified claim shall give the
Borrower written notice of the terms of such settlement or compromise reasonably
in advance of settling or compromising such claim or proceeding and shall obtain
the Borrower's prior written consent thereto, which consent shall not be
unreasonably withheld or delayed;provided that the Indemnified Party shall not
be restricted from settling or compromising any such claim if the Indemnified
Party waives its right to indemnity from the Borrower in respect of such claim
and such settlement or compromise does not materially increase the Borrower's
liability pursuant to this Section 10.13 to any related party of such
Indemnified Party.
Section 10.14. Governing Law; Submission to Jurisdiction; Waiver of
-------------------------------------------------------
Jury Trial.
-----------
(A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THE RIGHTS AND
DUTIES OF THE PARTIES THERETO, SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
73
(B) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO
AGREE THAT ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE OTHER AGENTS, THE LENDERS, THE ISSUING BANK, OR
THE BORROWER MAY BE BROUGHT AND MAINTAINED IN XXX XXXXXX XX XXX XXXXX XX XXX
XXXX SITTING IN THE BOROUGH OF MANHATTAN OR THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. THE BORROWER HEREBY IRREVOCABLY DESIGNATES
CT CORPORATION SYSTEM, 000 0XX XXXXXX, XXX XXXX, XXX XXXX 00000, AS THE
DESIGNEE, APPOINTEE AND AGENT OF THE BORROWER TO RECEIVE, FOR AND ON BEHALF OF
THE BORROWER, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT HERETO. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
(C) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY
HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
74
EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(D) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.7. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 10.15. Confidentiality. Each of the Agents, Issuing Bank and
---------------
Lenders agree to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to their respective
affiliates and to prospective Purchasing Lenders and Participants and their
respective directors, officers, employees and agents, including accountants,
legal counsel and other advisors who have reason to use such Information in
connection with the evaluation of the transactions contemplated by this
Agreement (subject to similar confidentiality provisions as provided herein)
solely for purposes of evaluating such Information, (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable law or
regulation or by any subpoena or similar legal process, (iv) in connection with
the exercise of any remedies hereunder or any proceedings relating to this
Agreement or the other Credit Documents, (v) with the consent of the Borrower,
or (vi) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section 10.15, or (y) becomes available on a
non-confidential basis from a source other than the Borrower or its affiliates,
or the Lenders or their respective affiliates, excluding any Information from
such source which, to the actual knowledge of the Agent, Issuing Bank or Lender
receiving such Information, has been disclosed by such source in violation of a
duty of confidentiality to the Borrower. For purposes hereof, "Information"
means all information received by the Lenders from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Lenders on a non-confidential basis prior to disclosure by the Borrower,
excluding any Information from a source which, to the actual knowledge of the
Agent, Issuing Bank or Lender receiving such Information, has been disclosed by
such source in violation of a duty of confidentiality to the Borrower. The
Lenders shall be considered to have complied with their respective obligations
if they have exercised the same degree of care to maintain the confidentiality
of such Information as they would accord their own confidential
information.Notwithstanding anything herein to the contrary, any party to this
Agreement (and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure.However, any such information relating to the tax treatment or tax
structure is required to be kept confidential to the extent necessary to comply
with any applicable federal or state securities laws.
Section 10.16. Effectiveness. This Agreement shall become effective on
-------------
the date (the "Effective Date") on which the Borrower, the Administrative Agent,
and each Lender have signed and delivered to the Administrative Agent a
counterparty signature page hereto (including
75
by facsimile or other electronic means) or the Administrative Agent has received
a facsimile notice that such a counterpart has been signed and mailed to the
Administrative Agent.
Section 10.17. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.18. Currency Conversion. All payments of Obligations under
-------------------
this Agreement, the Notes or any other Credit Document shall be made in Dollars,
except for Loans funded, or Reimbursement Obligations with respect to Letters of
Credit issued, in Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore
Dollars or Kroner, which shall be repaid, including interest thereon, in the
applicable currency. If any payment of any Obligation, whether through payment
by the Borrower or the proceeds of any collateral, shall be made in a currency
other than the currency required hereunder, such amount shall be converted into
the currency required hereunder at the current market spot rate for the purchase
of the currency required hereunder with the currency in which such obligation
was paid, as quoted by the Lender who is the Administrative Agent in accordance
with the methods customarily used by such Lender for such purposes as of the
time of such determination. The parties hereto hereby agree, to the fullest
extent that they may effectively do so under applicable law, that (i) if for the
purposes of obtaining any judgment or award it becomes necessary to convert from
any currency other than the currency required hereunder into the currency
required hereunder any amount in connection with the Obligations, then the
conversion shall be made as provided above on the Business Day before the day on
which the judgment or award is given, (ii) in the event that there is a change
in the rate of exchange prevailing between the Business Day before the day on
which the judgment or award is given and the date of payment, the Borrower will
pay to the Administrative Agent, for the benefit of the Lenders, such additional
amounts (if any) as may be necessary, and the Administrative Agent, on behalf of
the Lenders, will pay to the Borrower such excess amounts (if any) as result
from such change in the rate of exchange, to assure that the amount paid on such
date is the amount in such other currency, which when converted at the rate of
exchange described herein on the date of payment, is the amount then due in the
currency required hereunder, and (iii) any amount due from the Borrower under
this Section 10.18 shall be due as a separate debt and shall not be affected by
judgment or award being obtained for any other sum due. For the avoidance of
doubt, the parties affirm and agree that neither the fixing of the conversion
rate of Pounds or Kroners against the Euro as a single currency, in accordance
with the applicable treaties establishing the European Economic Community and
the European Union, as the case may be, in each case, as amended from time to
time, nor the conversion of the Obligations under this Agreement from Pounds or
Kroners into Euros will be a reason for early termination or revision of this
Agreement or prepayment of any amount due under this Agreement or create any
liability of any party towards any other party for any direct or consequential
loss arising from any of these events. As of the date that Pounds or Kroners
are no longer the lawful currency of the United Kingdom or Norway, as the case
may be, all funding and payment Obligations to be made in such affected currency
under this Agreement shall be satisfied in Euros. If, in relation to the
currency of any member state of the European Union that adopts the Euro as its
lawful currency, the basis of accrual of interest expressed in this
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Agreement in respect of that currency shall be inconsistent with any convention
or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such member state
adopts the Euro as its lawful currency;provided that if any Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Borrowing, at the end
of the then current Interest Period.
Section 10.19. Exchange Rates.
---------------
(a) Determination of Exchange Rates. Not later than 2:00 p.m. on each
--------------------------------
Calculation Date, the Administrative Agent shall (i) determine the Exchange Rate
as of such Calculation Date with respect to Euros, Pounds, Australian Dollars,
Canadian Dollars, Singapore Dollars and Kroner, and (ii) give notice thereof to
the Lenders and the Borrower. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a "Reset Date"), shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this Agreement (other than
Section 10.18 or any other provision expressly requiring the use of a current
Exchange Rate) be the Exchange Rates employed in determining the Dollar
Equivalent of any amounts of Euros, Pounds, Australian Dollars, Canadian
Dollars, Singapore Dollars or Kroner.
(b) Notice of Foreign Currency Loans and Letters of Credit. Not later
-------------------------------------------------------
than 5:00 p.m. on each Reset Date and each date on which Loans and/or Letters of
Credit denominated in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars and/or Kroner are made or issued, the Administrative Agent
shall (i) determine the Dollar Equivalent of the aggregate principal amounts of
the Loans and L/C Obligations denominated in such currencies (after giving
effect to any Loans and/or Letters of Credit denominated in such currencies
being made, issued, repaid, or cancelled or reduced on such date), and (ii)
notify the Lenders and the Borrower of the results of such determination.
Section 10.20. Change in Accounting Principles, Fiscal Year or Tax
-------------------------------------------------------
Laws. If (i) any change in accounting principles from those used in the
----
preparation of the financial statements of the Borrower referred to in Section
5.9 is hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accounts (or successors
thereto or agencies with similar functions), and such change materially affects
the calculation of any component of any financial covenant, standard or term
found in this Agreement, or (ii) there is a material change in federal or
foreign tax laws which materially affects any of the Borrower and its
Subsidiaries' ability to comply with the financial covenants, standards or terms
found in this Agreement, the Borrower and the Lenders agree to enter into
negotiations in order to amend such provisions (with the agreement of the
Required Lenders or, if required by Section 10.11, all of the Lenders) so as to
equitably reflect such changes with the desired result that the criteria for
evaluating any of the Borrower's and its Subsidiaries' financial condition shall
be the same after such changes as if such changes had not been made. Unless and
until such provisions have been so amended, the provisions of this Agreement
shall govern.
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Section 10.21. Final Agreement. The Credit Documents constitute the
----------------
entire understanding among the Credit Parties, the Lenders, the Issuing Bank,
and the Administrative Agent and supersede all earlier or contemporaneous
agreements, whether written or oral, concerning the subject matter of the Credit
Documents.THIS WRITTEN AGREEMENT TOGETHER WITH THE OTHER CREDIT DOCUMENTS
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 10.22. Officer's Certificates. It is not intended that any
-----------------------
certificate of any officer of the Borrower delivered to the Administrative Agent
or any Lender pursuant to this Agreement shall give rise to any personal
liability on the part of such officer.
Section 10.23. Effect of Inclusion of Exceptions. It is not intended
----------------------------------
that the specification of any exception to any covenant herein shall imply that
the excepted matter would, but for such exception, be prohibited or required.
78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
BORROWER:
--------
TRANSOCEAN INC.,
a Cayman Islands company
By: /s/ C. Xxxx Xxxx
----------------------------
Name: C. Xxxx Xxxx
Title: Vice President and Treasurer
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK,
As Administrative Agent, Issuing Bank,
and a Lender
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Vice President
COMMITMENT AMOUNT: $70,000,000
PERCENTAGE: 8.75%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
CITIBANK, N.A.,
As a Co-Syndication Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
Senior Credit Officer
COMMITMENT AMOUNT: $70,000,000
PERCENTAGE: 8.75%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
As a Co-Syndication Agent and a Lender
By: /s/ Xxxxxx Xxx
----------------------------
Name: Xxxxxx Xxx
Title: Managing Director
COMMITMENT AMOUNT: $65,000,000
PERCENTAGE: 8.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
THE ROYAL BANK OF SCOTLAND PLC,
As a Co-Documentation Agent and a Lender
By: /s/ Xxxxxxx X. Main
----------------------------
Name: Xxxxxxx X. Main
Title: Senior Vice President
COMMITMENT AMOUNT: $65,000,000
PERCENTAGE: 8.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
BANK ONE, NA,
As a Co-Documentation Agent and a Lender
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
COMMITMENT AMOUNT: $65,000,000
PERCENTAGE: 8.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
UBS LOAN FINANCE LLC,
As a Managing Agent and a Lender
By: /s/ Xxxxxxxx X'Xxxxx
----------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
By: /s/ Xxxxxxx Saint
----------------------------
Name: Xxxxxxx Saint
Title: Associate Director
COMMITMENT AMOUNT: $60,000,000
PERCENTAGE: 7.5%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
XXXXX FARGO BANK,
N.A.,
As a Managing Agent and a Lender
By: /s/ Xxxx X. Xxxxxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
Title: Vice President
COMMITMENT AMOUNT: $60,000,000
PERCENTAGE: 7.5%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
THE BANK OF NEW YORK
As a Co-Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMMITMENT AMOUNT: $50,000,000
PERCENTAGE: 6.25%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
DEN NORSKE BANK ASA,
As a Co-Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
and General Manager
COMMITMENT AMOUNT: $50,000,000
PERCENTAGE: 6.25%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
HSBC BANK USA,
As a Co-Agent and a Lender
By: /s/ Xxxxxx Xxxxxxx #9429
----------------------------
Name: Xxxxxx Xxxxxxx #9429
Title: First Vice President
COMMITMENT AMOUNT: $50,000,000
PERCENTAGE: 6.25%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA,
As a Lender
By: /s/ X. Xxxx
----------------------------
Name: X. Xxxx
Title: Senior Manager
COMMITMENT AMOUNT: $30,000,000
PERCENTAGE: 3.75%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
THE BANK OF TOKYO-MITSUBISHI, LTD.
As a Lender
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
COMMITMENT AMOUNT: $30,000,000
PERCENTAGE: 3.75%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
ABN AMRO BANK, N.V.,
As a Lender
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
COMMITMENT AMOUNT: $25,000,000
PERCENTAGE: 3.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
XXXXXXX STREET CREDIT
CORPORATION,
As a Lender
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President and Chief Financial
Officer
COMMITMENT AMOUNT: $25,000,000
PERCENTAGE: 3.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
XXXXXX XXXXXXX BANK
As a Lender
By: /s/ Jaap L. Tonckens
----------------------------------
Name: Jaap L. Tonckens
Title: Vice President
COMMITMENT AMOUNT: $25,000,000
PERCENTAGE: 3.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
SUMITOMO MITSUI BANKING
CORPORATION,
As a Lender
By: /s/ Xxx X. Xxxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
COMMITMENT AMOUNT: $25,000,000
PERCENTAGE: 3.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
CREDIT SUISSE FIRST BOSTON,
As a Lender
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate
COMMITMENT AMOUNT: $25,000,000
PERCENTAGE: 3.125%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
SOUTHWEST BANK OF TEXAS,
As a Lender
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
COMMITMENT AMOUNT: $10,000,000
PERCENTAGE: 1.25%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
