FOURTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Fourth Amendment”), dated as of November 30, 2020, is among TRANSOCEAN INC., a Cayman Islands exempted company (the “Borrower”), Transocean Asset Holdings 1 Limited, a Cayman Islands exempted company (“Holdco 4”), Transocean Asset Holdings 2 Limited, a Cayman Islands exempted company (“Holdco 5”), Transocean Asset Holdings 3 Limited, a Cayman Islands exempted company (“Holdco 6”), the New RCF Holdco Guarantors (as defined below), CITIBANK, N.A., as administrative agent for the Lenders (as defined below) under the Credit Agreement referred to below (in such capacity, the “Administrative Agent”), CITIBANK, N.A., acting through its Agency & Trust Division, as collateral agent for the Lenders (as defined below) and the Issuing Banks under, and as defined in, the Credit Agreement referred to below (in such capacity, “Collateral Agent”) and each Lender party hereto.
INTRODUCTION
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NOW, THEREFORE, in consideration of the premises and the mutual covenants, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
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For purposes of determining compliance with the conditions specified in this Section 4, the Administrative Agent and each Lender party hereto, as applicable, that has signed this Fourth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case to be consented to or approved by or to be acceptable or satisfactory to the Administrative Agent or each Lender party hereto, as applicable. Upon the satisfaction of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower of the effectiveness of this Fourth Amendment, and such notice shall be conclusive and binding.
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National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
[Signature pages follow.]
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EXECUTED to be effective as of the date first above written.
BORROWER:
TRANSOCEAN INC.
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
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GUARANTORS
TRANSOCEAN ASSET HOLDINGS 1 LIMITED
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
TRANSOCEAN ASSET HOLDINGS 2 LIMITED
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
TRANSOCEAN ASSET HOLDINGS 3 LIMITED
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
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NEW RCF HOLDCO GUARANTORS
TRANSOCEAN SUB ASSET HOLDINGS 1 LIMITED
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
TRANSOCEAN SUB ASSET HOLDINGS 2 LIMITED
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
TRANSOCEAN SUB ASSET HOLDINGS 3 LIMITED
By:/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:President
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ADMINISTRATIVE AGENT/ LENDERS:
CITIBANK, N.A., as Administrative Agent and a Lender
By:/s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
COLLATERAL AGENT:
CITIBANK, N.A., as Collateral Agent
By:/s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Trust Officer
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XXXXX FARGO BANK, N.A., as a Lender
By:/s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Director
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DNB CAPITAL LLC, as a Lender
By:/s/Xxxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxxx Xxxxxxxxxxx
Title: Senior Vice President
By:/s/Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Assistant Vice President
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CRÉDIT AGRICOLE CORPORATE AND
INVESTMENT BANK, as a Lender
By: | /s/Xxxxxxx Xxxxxx |
By: | /s/Page Dillehunt |
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CITICORP NORTH AMERICA, INC., as a Lender
By:/s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
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XXXXXXX XXXXX BANK USA, as a Lender
By: | /s/Xxxxxx Xxxxx |
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XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as a Lender
By:/s/Xxx Xxx
Name: Xxx Xxx
Title: Vice President
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NORDEA BANK ABP, NEW YORK BRANCH, as a Lender
By:/s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Managing Director
By:/s/Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
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XXXXXXXXX 0 XX-XXXX XXX, as a Lender
By:/s/Vidar Høyvik
Name: Vidar Høyvik
Title: Vice President
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THE STANDARD BANK OF SOUTH AFRICA LIMITED, as a Lender
By:/s/Xxxxx Xxxxxxxx Xxxxx
Name: Xxxxx Xxxxxxxx Xxxxx
Title: Executive
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[Conformed through Increase of Commitments and First Amendment to Credit Agreement, dated May 13, 2019, Increase of Commitments, Second Amendment to Credit Agreement and First Amendment to Guaranties, dated July 15, 2019 and, Increase of Commitments and Third Amendment to Credit Agreement, dated December 23, 2019 and Fourth Amendment to Credit Agreement, dated November 30, 2020]
CREDIT AGREEMENT
Dated as of June 22, 2018,
Among
TRANSOCEAN INC.,
as Borrower,
THE LENDERS PARTIES HERETO,
CITIBANK, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Collateral Agent,
XXXXX FARGO SECURITIES, LLC,
as Syndication Agent,
and
XXXXXXX XXXXX BANK USA and DNB BANK ASA, NEW YORK BRANCH,
as Co-Documentation Agents
CITIBANK, N.A.,
XXXXX FARGO SECURITIES, LLC,
XXXXXXX XXXXX BANK USA and
DNB MARKETS, INC.,
as Joint Lead Arrangers
CITIBANK, N.A.,
as Sole Bookrunner
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TABLE OF CONTENTS
Page
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Section 6.18Conduct of Business of Holdco 1, Holdco 2 and, Holdco 3, Holdco 4, Holdco 5 and Holdco 69199
Section 6.27Further Assurances; Additional Collateral Rigs and Rig Exchanges; Additional Loan Parties93102
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Exhibits:
Exhibit 1.1-A -Form of Account Pledge Agreement
Exhibit 1.1-B -Form of Assignment of Earnings
Exhibit 1.1-C -Form of Assignment of Insurances
Exhibit 2.3-Form of Borrowing Request
Exhibit 2.8-Form of Master Note
Exhibit 2.12-Form of L/C Issuance Request
Exhibit 3.3-1-Form of Tax Compliance Certificate (Non-Partnership Lenders)
Exhibit 3.3-2-Form of Tax Compliance Certificate (Non-Partnership Participants)
Exhibit 3.3-3-Form of Tax Compliance Certificate (Partnership Participants)
Exhibit 3.3-4-Form of Tax Compliance Certificate (Partnership Lenders)
Exhibit 6.6-Form of Compliance Certificate
Exhibit 10.10-Form of Assignment Agreement
Schedules:
Schedule 1.1-C-Commitments
Schedule 1.1-E-Existing Letters of Credit
Schedule 1.1-P-Pricing Grid
Schedule 1.1-S-Specified Rigs
Schedule 5.4-Certain Disclosed Matters
Schedule 5.15-Certain Existing Indebtedness
Schedule 5.16-Certain Existing Liens
Schedule 5.21(e)-Collateral Rigs
Schedule 6.12(i) -Effective Date Purchase Money Rig Debt
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 22, 2018, among TRANSOCEAN Inc., a Cayman Islands exempted company, as the borrower, the Lenders from time to time parties hereto, the Issuing Banks from time to time parties hereto, CITIBANK, N.A., as administrative agent for the Lenders (the “Administrative Agent”), CITIBANK, N.A., acting through its Agency & Trust Division, as collateral agent for the Issuing Banks and the Lenders (the Collateral Agent”), XXXXX FARGO SECURITIES, LLC, as syndication agent for the Lenders (in such capacity, the “Syndication Agent”), and XXXXXXX SACHS BANK USA and DNB BANK ASA, NEW YORK BRANCH, as co-documentation agents for the Lenders (in such capacities, collectively the “Co-Documentation Agents”).
The parties hereto agree as follows:
“85% Guaranty Requirement” has the meaning ascribed thereto in Section 6.29.
“Acceptable Appraiser” means any of Pareto Offshore, Fearnleys Offshore, Arctic Offshore, Bassoe Offshore and Clarkson Platou, or any other vessel appraisal service reasonably satisfactory to the Administrative Agent.
“Acceptable Classification Society” means any of DNV GL, Lloyds Register, American Bureau of Shipping (ABS) and Bureau Veritas, or any other first class vessel classification society that is a member of the International Association of Classification Societies.
“Acceptable Flag Jurisdiction” means the Republic of the Xxxxxxxx Islands, the Republic of Liberia, the Republic of Vanuatu, the Bahamas, Panama, Malta, Denmark and Switzerland, or any other jurisdiction approved by the Administrative Agent; provided that for any jurisdiction not specified herein that is approved by the Administrative Agent, a mortgagee of a Rig would be entitled to enforce remedies under a Mortgage of such Rig governed by the law of such jurisdiction on terms consistent with, in all material respects, or better than, the remedies that the Collateral Agent would be entitled to enforce under the Mortgages of the Specified Rigs on the Effective Date.
“Acceptable Rig” means any Rig that is an ultra deep-water drillship or semi-submersible Rig; provided that (a) the Collateral Agent or its representatives shall have the right to inspect such Rig (subject to (i) any safety/training procedures required by the operator or the owner of such Rig for visitations generally, (ii) the consent of the charterer of such Rig (provided that the Loan Parties shall, and shall ensure that their respective Subsidiaries and Local Content Entities will, exercise their commercially reasonable efforts to obtain such consent) and (iii) the execution and delivery by all such representatives of any customary indemnity and hold harmless agreements in favor of the charterer, the owner and/or the operator in respect of such Rig in relation to such visitation); provided that any such visits and inspections will not unreasonably interfere with the conduct of business, and all such visits and inspections shall be held at reasonable times, which shall be during ordinary business hours of the Borrower or the owner or operator of such Rig, as applicable, (b) such Rig must have been originally constructed and delivered from the shipyard during or after the calendar year ended 2009, (c) such Rig must have a class certificate showing it has been classified by an Acceptable Classification Society, at minimum at the same standard of
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classifications as is applicable for Rigs of comparable age and type, free of any overdue conditions or recommendations affecting the classification of such Rig for which no extension has been granted by the applicable Acceptable Classification Society, and (d) such Rig must be registered and flagged in an Acceptable Flag Jurisdiction.
“Account Pledge Agreement” has the meaning ascribed to such term in the definition of “Collateral Rig Requirements”.
“Acquired Rig Debt” means purchase money Rig debt of a Person existing at the time such Person becomes a Member of the Consolidated Group or is merged, consolidated or amalgamated with or into the Borrower or any other Member of the Consolidated Group (other than any Subsidiary Guarantor) that (a) meets the requirements set forth in clauses (y)(iv) and (y)(vii) of the definition of “Permitted Rig Debt”, (b) is otherwise permitted by Section 6.12(f), (c) is secured only by Liens otherwise permitted by Section 6.11(i), and (d) is in an amount not in excess of 85% of the Rig Value of the Rig(s) secured thereby.
“Additional Guarantor” has the meaning ascribed to such term in the definition of “Guarantor”.
“Additional Lender” has the meaning ascribed to such term in Section 2.17(d).
“Additional Rig” means each Collateral Rig other than a Specified Rig.
“Adjusted LIBOR” means, for any Eurocurrency Loan for any Interest Period, a rate per annum (expressed as a percentage) determined in accordance with the following formula:
Adjusted LIBOR = LIBO Rate for such Interest Period
1.00 - Statutory Reserve Rate
“Administrative Agent” means Citibank, N.A., acting in its capacity as administrative agent for the Lenders, and any successor Administrative Agent appointed hereunder pursuant to Section 9.10(a).
“Administrative Agent’s Account” means (a) the account of the Administrative Agent maintained by the Administrative Agent at its office at 0000 Xxxxx Xxxx, OPS III, Xxx Xxxxxx, XX 00000, Attention: Agency, and (b) such other account of the Administrative Agent or the Sub-Agent as may be designated in writing from time to time by the Administrative Agent to the Borrower and the Lenders for such purpose.
“Administrative Questionnaire” means, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent duly completed by such Lender and submitted to the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person.
“Agent Parties” has the meaning ascribed to such term in Section 10.7(c).
“Agreement” means this Credit Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Alternate Base Rate” means, for any day (or, if such day is not a Business Day, the next preceding Business Day), a rate per annum equal to the greatest of the then determinable of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 50 basis points (0.50%),
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and (c) Adjusted LIBOR (for U.S. dollar borrowings) for a one month Interest Period commencing two Business Days thereafter, as appearing at approximately 11:00 a.m. London time on the Applicable Screen on such day plus 100 basis points (1.00%). Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted LIBOR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate, or Adjusted LIBOR, as the case may be.
“Alternative Currency” means any of the following currencies: Euro, Sterling, Krone, Swiss Francs, Canadian Dollars, Brazilian Reals, or any other alternative currency acceptable to the Required Lenders and each Issuing Bank issuing a Letter of Credit in such other alternative currency.
“Alternative Currency Sublimit” means $450,000,000.
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the Borrower, Holdings and other Members of the Consolidated Group, and solely as the context requires, any Lender, any Issuing Bank, any Syndication Agent, any Co-Documentation Agent, any Joint Lead Arranger, the Administrative Agent or the Collateral Agent from time to time concerning or relating to bribery, money laundering, or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended from time to time, and the United Kingdom’s Xxxxxxx Xxx 0000, as amended from time to time.
“Applicable Facility Fee Rate” means, for any day, based on the Credit Rating then in effect as provided herein, the applicable percentage per annum for the facility fee payable pursuant to Section 3.1(a) for such Credit Rating as shown on the Pricing Grid.
“Applicable Lending Office” means the “lending office” of any Lender (or an Affiliate of such Lender) designated for each Type and/or currency of Loan or Letter of Credit 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 Revolving Loans and Letters of Credit of such Type and/or currency are to be made and maintained.
“Applicable Margin” means, for any day, (i) for Eurocurrency Loans, the applicable percentage per annum appearing as the “Applicable Margin for Eurocurrency Borrowings” set forth in the Pricing Grid based on the Credit Rating then in effect as provided herein, and (ii) for Base Rate Loans, the applicable percentage per annum appearing as the “Applicable Margin for Base Rate Borrowings” set forth in the Pricing Grid based on the Credit Rating then in effect as provided herein.
“Applicable Percentage” means, at any time for each Lender, the percentage of the total Commitments of all Lenders then in effect represented at such time by such Lender’s Commitment; provided, that if the Commitments are terminated, each Lender’s Applicable Percentage shall be calculated based on such Lender’s pro rata share of the total Revolving Loans and L/C Obligations then outstanding or, if no Revolving Loans or L/C Obligations are then outstanding, its Commitment in effect immediately before such termination, subject to (x) any assignments by such Lender of its Obligations pursuant to Section 10.10(a) or Section 2.16, and (y) any reallocations of Commitments, Revolving Loans and participations in L/C Obligations pursuant to Section 2.12(d) or Section 2.17(e).
“Applicable Screen” has the meaning ascribed to such term in the definition herein of “LIBO Rate.”
“Application” means an application for a Letter of Credit as defined in Section 2.12(b), including a master application pursuant to which one or more subsequent Letters of Credit may be issued.
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“Appraisal” means, with respect to any Rig, an appraisal (which may, for the avoidance of doubt, be a desktop appraisal) of such Rig on a charter-free basis from any Acceptable Appraiser, stating the then current fair market value of such Rig and otherwise in scope, form and substance reasonably satisfactory to the Administrative Agent.
“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender, or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment Agreement” means an agreement in substantially the form of Exhibit 10.10 (or such other form as may be approved by the Administrative Agent) whereby a Lender conveys part or all of its Commitment, Revolving Loans and participations in L/C Obligations to another Person that is, or thereupon becomes, a Lender, or to another Lender that increases its Commitments, outstanding Revolving Loans and outstanding participations in L/C Obligations, pursuant to Section 10.10.
“Assignment of Earnings” has the meaning ascribed to such term in the definition of “Collateral Rig Requirements”.
“Assignment of Insurances” has the meaning ascribed to such term in the definition of “Collateral Rig Requirements”.
“Assumption Agreement” has the meaning ascribed to such term in Section 2.17(d).
“Available Cash” means, as of any date, the aggregate of all unrestricted cash and Cash Equivalents (excluding, for the avoidance of doubt, required cash collateral, including Cash Collateral hereunder) held on the balance sheet of, or owned and controlled by, or held for the benefit of, any Loan Party or any Subsidiaries other than (a) any cash set aside to pay in the ordinary course of business amounts then due and owing by such Loan Party or such Subsidiary to unaffiliated third parties and for which such Loan Party or such Subsidiary has issued checks or has initiated wires or automated clearing house transfers in order to pay such amounts, (b) any cash of any Loan Party or any Subsidiary constituting purchase price deposits or other contractual or legal requirements to deposit money held by an unaffiliated third party, (c) deposits of cash or Cash Equivalents from unaffiliated third parties that are subject to return pursuant to binding agreements with such third parties, (d) net cash proceeds of issuances of Equity Interests of Holdings (other than Disqualified Capital Stock) set aside and segregated to be used to consummate one or more Redemptions of Indebtedness permitted hereunder within 90 days of receipt of such proceeds; provided that any such net cash proceeds which are not so used within such 90 day period shall cease to be excluded from the definition of “Available Cash” pursuant to this clause (d) at such time, and (e) cash and Cash Equivalents in Excluded Accounts.
“Available Liquidity” means, at any time, the sum of:
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“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person appointed for it charged with the reorganization, receivership, custodianship, or liquidation of its business or properties or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment.
“Bareboat Charter Account” means, with respect to any Collateral Rig, the Deposit Account or Deposit Accounts of the Collateral Rig Owner of such Collateral Rig designated as such from time to time by the Collateral Rig Owner in the applicable Account Pledge Agreement into which all earnings, hires, freights, income and other sums payable to the Collateral Rig Owner under any bareboat charterparty in respect of such Collateral Rig are deposited.
“Base Rate Borrowing” means a Borrowing of Base Rate Loans made pursuant to a Borrowing Request as provided in Section 2.3(a) or converted from an outstanding Eurocurrency Borrowing or Borrowings pursuant to Section 2.3(b), Section 8.1(b) or Section 8.2.
“Base Rate Loan” means a Revolving Loan bearing interest prior to maturity at the rate specified in Section 2.6(a).
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower” means Transocean Inc., an exempted company incorporated under the laws of the Cayman Islands.
“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 Revolving Loan to the other, all as requested by the Borrower pursuant to Section 2.3.
“Borrowing Request” has the meaning ascribed to such term 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 New York, New York and, if the applicable Business Day relates to the advance or
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continuation of, conversion into, or payment on a Eurocurrency Borrowing, on which banks in the interbank eurocurrency market are dealing for Dollar deposits, in London, England.
“Calculation Date” means the last Business Day of each calendar quarter.
“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 combination thereof or interest therein) which is required to be capitalized on the balance sheet of such Person as determined in accordance with GAAP. Notwithstanding anything to the contrary in this Agreement or any other Credit Document, for purposes of calculating Capitalized Lease Obligations pursuant to the terms of this Agreement or any other Credit Document, GAAP will be deemed to treat leases that would have been classified as operating leases in accordance with generally accepted accounting principles in the United States of America as in effect on December 31, 2017 in a manner consistent with the treatment of such leases under generally accepted accounting principles in the United States of America as in effect on December 31, 2017, notwithstanding any modifications or interpretive changes thereto that may occur or be implemented thereafter, and regardless of whether such lease was in effect on December 31, 2017.
“Cash Collateralize” means to deposit in the Collateral Account or to pledge and deposit with or deliver to the Collateral Agent, for the benefit of one or more of the Issuing Banks or Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case with such cash or deposit account balances or other credit support denominated in the applicable currency in which such L/C Obligations are payable and pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means (i) securities issued or directly and fully guaranteed or insured by the government of the United States or any other country whose sovereign debt has a rating of at least A3 from Xxxxx’x and at least A- from S&P or any agency or instrumentality thereof having maturities of not more than twelve months from the date of acquisition, (ii) certificates of deposit, demand deposits and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank organized under the laws of any country that is a member of the Organization for Economic Cooperation and Development having capital and surplus in excess of $500,000,000 (or the equivalent thereof in any other currency or currency unit), (iii) marketable general obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating of “A” or better from either S&P or Xxxxx’x, (iv) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (i), (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (ii) above, (v) commercial paper having one of the two highest ratings obtainable from Xxxxx’x or S&P, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings or investments, and, in each case, maturing within one year after the date of acquisition, (vi) money market mutual funds substantially all of the assets of which are of the type described in the foregoing clauses (i) through (v) of this definition, and (vii) in the case of Holdings or any Subsidiary of Holdings organized or having its principal place of business outside the United States, investments denominated in the currency of the jurisdiction in which such Person is organized or has its principal place of business or conducts business which are similar to the items specified in clauses (i) through (vi) of this definition.
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“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“Cash Management Bank” means any Person, in its capacity as a party to any Cash Management Agreement, that (i) with respect to such Cash Management Agreement, was in existence at the time such Person became a Lender or an Affiliate of a Lender or (ii) with respect to such Person, was a Lender or an Affiliate of a Lender at the time it entered into such Cash Management Agreement.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“CNTA Threshold” means, at any time, the amount of Revolving Obligations that would be permitted to be incurred by any Loan Party and secured at such time without requiring equal and ratable or other liens to be granted pursuant to the indentures or other debt documents (assuming the full amount of Revolving Obligations constitute “Indebtedness” as defined therein or “debt” as used therein) governing the Indebtedness of any Member of the Consolidated Group, including without limitation pursuant to the 10% CNTA lien basket in certain indentures of the Members of the Consolidated Group, and in each case giving effect to any usage of baskets in such indentures or other debt documents for other indebtedness and liens.
“Code” means the Internal Revenue Code of 1986, as amended from time to time (except as otherwise provided herein).
“Collateral” means all property with respect to which any Lien has been granted (or purported to be granted) pursuant to any Collateral Document and all property of the Transaction Parties in which the Administrative Agent or the Collateral Agent is granted a Lien for the benefit of the Lenders as described in Section 7.4.
“Collateral Account” has the meaning ascribed to such term in Section 7.4(b).
“Collateral Agent” means Citibank, N.A., acting through its Agency & Trust Division, acting in its capacity as collateral agent for the Issuing Banks and the Lenders pursuant to the Collateral Documents and any co-collateral agent or successor collateral agent appointed hereunder pursuant to Section 9.10(a).
“Collateral Coverage Ratio” has the meaning ascribed to such term in Section 6.23.
“Collateral Coverage Ratio Cure Period” has the meaning ascribed to such term in Section 6.27(b)(i).
“Collateral Documents” means, collectively, each Mortgage, each Account Pledge Agreement, each Share Pledge Agreement, each pledge agreement with respect to the Equity Interests in Holdco 47,
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Holdco 58 and Holdco 69, each Assignment of Earnings, each Assignment of Insurances, each control agreement and any and all other security agreements, pledge agreements, vessel or fleet mortgages or collateral assignments executed and delivered by any Transaction Party and creating Liens on the assets of the Transaction Parties in favor of the Collateral Agent and/or the Administrative Agent, to secure the Obligations, in each case entered into pursuant to the terms of this Agreement.
“Collateral Rig” means each Specified Rig, any other Acceptable Rig subject to a Mortgage that is necessary to comply with the Collateral Coverage Ratio, and any other Acceptable Rig that the Borrower elects to become subject to a Mortgage (including those added as Collateral Rigs pursuant to a Rig Exchange), other than any Rig that ceases to be a Collateral Rig in accordance with this Agreement (including any Collateral Rig subject to a Rig Exchange).
“Collateral Rig Operator” means, with respect to any Collateral Rig, any Subsidiary or Local Content Entity of Holdings that operates such Collateral Rig.
“Collateral Rig Owner” means, with respect to any Collateral Rig, the Subsidiary or Local Content Entity of Holdings that owns such Rig and (i) from and after the date of any sale, transfer or other disposition of such Collateral Rig to another Subsidiary or Local Content Entity of Holdco 47, Holdco 58, or Holdco 69 in accordance with Section 6.24, such Subsidiary or Local Content Entity or (ii) from and after the date of any merger or other business combination involving such Subsidiary or Local Content Entity in accordance with Section 6.1 and Section 6.10, the survivor thereof.
“Collateral Rig Requirements” means, with respect to a Rig:
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provided, that the foregoing shall at all times be subject to the provisions of Section 6.27(e).
“Collateral Rig Value” means, at any time, without duplication, (a) the Fair Market Value of Collateral Rigs (other than Excluded Collateral Rigs) that are then Contracted Rigs wholly directly owned by a Loan Party that is a direct or indirect Subsidiary or Local Content Entity of Holdco 47, Holdco 58, or Holdco 69, plus (b) the Fair Market Value of Collateral Rigs (other than Excluded Collateral Rigs) that are then Marketed Rigs wholly directly owned by a Loan Party that is a direct or indirect Subsidiary or Local Content Entity of Holdco 47, Holdco 58, or Holdco 69, minus (c) the aggregate amount of obligations secured by Permitted Collateral Liens on the Collateral Rigs set forth in clause (c) of Section 6.11 (to the extent such amount remains 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), clause (d) of Section 6.11 (to the extent such amount of Taxes is more than ninety (90) days past due and cannot thereafter be paid without penalty) and clause (e) of Section 6.11, in each case, only to the extent such obligations are not being contested in good faith by appropriate proceedings or reserves in conformity with GAAP have not been provided therefor; provided that at least 80% of Collateral Rig Value must be comprised of Fair Market Value attributable to Collateral Rigs that are Contracted Rigs wholly directly owned by a Loan Party.
“Collateralized Obligations” has the meaning ascribed to such term in Section 7.4(b).
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“Commitment” means, relative to any Lender, such Lender’s obligations to make Revolving Loans and purchase participations in L/C Obligations pursuant to Sections 2.1 and 2.12, initially in the amount and percentage set forth in Part I of Schedule 1.1-C 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 Date” has the meaning ascribed to such term in Section 2.17(b).
“Commitment Increase” has the meaning ascribed to such term in Section 2.17(a).
“Commitment Termination Date” means the earliest of (i) June 22, 2023 (the “Original Maturity Date”), subject to the extension thereof pursuant to Section 2.16, (ii) the date on which the Commitments are terminated in full or reduced to zero pursuant to Section 2.13, (iii) the occurrence of any Event of Default described in Section 7.1(f) or (g) with respect to the Borrower, or the occurrence and continuance of any other Event of Default and either (x) the declaration of the Revolving 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 and (iv) if the Borrower’s Senior Notes due 2023 (or any refinancing or replacement thereof (other than the Loans) to the extent such refinancing or replacement has a stated maturity date that is earlier than 91 days after the Original Maturity Date) are outstanding in an aggregate principal amount in excess of $300,000,000, the date that is 91 days prior to the earliest stated maturity of such Indebtedness; provided, however, that the Commitment Termination Date of any Lender that is a Declining Lender with respect to any requested extension pursuant to Section 2.16 shall be the earlier of (1) the Commitment Termination Date in effect with respect to such Lender’s Commitment immediately prior to such extension, (2) the date on which the Commitments are terminated in full or reduced to zero pursuant to Section 2.13, (3) the occurrence of any Event of Default described in Section 7.1(f) or (g) with respect to the Borrower or the occurrence and continuance of any other Event of Default, and either (I) the declaration of the Revolving Loans to be due and payable pursuant to Section 7.2, or (II) 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 and (4) if the Borrower’s Senior Notes due 2023 (or any refinancing or replacement thereof (other than the Loans) to the extent such refinancing or replacement has a stated maturity date that is earlier than 91 days after the Original Maturity Date) are outstanding in an aggregate principal amount in excess of $300,000,000, the date that is 91 days prior to the earliest stated maturity of such Indebtedness.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” has the meaning ascribed to such term in Section 10.7(c).
“Compliance Certificate” means a certificate in the form of Exhibit 6.6.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Affiliates” means those Affiliates of the Borrower that are not (i) Subsidiaries of Holdings or the Borrower or (ii) SPVs, but are variable interest entities whose accounts are consolidated with those of Holdings under GAAP.
“Consolidated EBITDA” means, for any period, the consolidated net income (as determined in accordance with GAAP) of the Consolidated Group for such period (i) before deducting therefrom any provision for taxes that would be included in determining such net income, (ii) before deducting therefrom
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any interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments whether paid, payable or capitalized that would be included in determining such net income, (iii) before deducting therefrom any amount attributable to the amortization, depreciation or impairment of assets that would be included in determining such net income, (iv) before taking into account any exceptional items that would be included in determining such net income and (v) before deducting therefrom any amount attributable to Reactivation Costs. For purposes of calculating Consolidated EBITDA:
(i) acquisitions that have been made by any Member of the Consolidated Group, including through mergers, consolidations or otherwise, and including in each case any related financing transactions (including repayment of Indebtedness) during the relevant reference period or subsequent to such reference period and on or prior to the date on which the calculation of Consolidated EBITDA is made (the “Calculation Date”), will be given pro forma effect as if they had occurred on the first day of the applicable reference period, including any consolidated net income and any pro forma expense and cost reductions that have occurred or are reasonably expected to occur within the next 12 months, provided that such cost savings or operating improvements could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto; and
(ii) the consolidated net income attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, will be excluded.
“Consolidated Group” means, collectively, Holdings, the Borrower, and their respective Subsidiaries and Consolidated Affiliates. Each Person that is Holdings, the Borrower or a Subsidiary or Consolidated Affiliate thereof included in the Consolidated Group at any time is referred to herein as a “Member of the Consolidated Group.”
“Consolidated Indebtedness” means all Indebtedness of the Consolidated Group that would be reflected on a consolidated balance sheet of such Persons prepared in accordance with GAAP. Notwithstanding anything to the contrary in this Agreement or any other Credit Document, for purposes of calculating Consolidated Indebtedness pursuant to the terms of this Agreement or any other Credit Document, GAAP will be deemed to treat leases that would have been classified as operating leases in accordance with generally accepted accounting principles in the United States of America as in effect on December 31, 2017 in a manner consistent with the treatment of such leases under generally accepted accounting principles in the United States of America as in effect on December 31, 2017, notwithstanding any modifications or interpretive changes thereto that may occur thereafter, and regardless of whether such lease was in effect on December 31, 2017.
“Consolidated Tangible Net Worth” means, as of any date of determination, consolidated shareholders equity of the Consolidated Group determined in accordance with GAAP (excluding the effect on shareholders equity of cumulative foreign exchange translation adjustments) less the net book amount of all assets of the Consolidated Group that would be classified as intangible assets on the consolidated balance sheet of the Consolidated Group 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.
“Contracted Rig” means a Rig that is operating under a Drilling Contract in full force and effect, or that is subject to such a contract, with operations scheduled to begin under such contract within 12 months after the applicable date of determination.
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“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Core Subsidiary Guarantors” means, collectively, the Collateral Rig Owners and, Holdco 4, Holdco 5 and, Holdco 6, Holdco 7, Holdco 8 and Holdco 9 and each successor Person which has assumed all obligations of a Core Subsidiary Guarantor pursuant to the requirements of Section 6.10(c) or (f), in each case to the extent constituting Subsidiary Guarantors.
“Covered Entity” means any of the following:
(a)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning assigned to such term in Section 10.26.
“Credit Documents” means (i) this Agreement, (ii) the Notes, (iii) the Collateral Documents in effect from time to time, (iv) the Guaranty Agreements and any Guaranty Supplement and (v) the Applications.
“Credit Rating” means the rating (either express or implied) by S&P and Xxxxx’x on the credit facility pursuant to this Agreement. If at any time such Credit Ratings are different, the higher Credit Rating will govern, unless there is more than one level between the Credit Ratings and then the level immediately above the lower Credit Rating (lower pricing) will apply. If only one Credit Rating is available, such available Credit Rating will govern. Any change to the Applicable Facility Fee Rate and Applicable Margin shall be effective on the date of the relevant change.
If the rating system of Xxxxx’x or S&P shall change, or if any such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Margin and Applicable Facility Fee Rate shall be determined by reference to Level VI on the Pricing Grid. Notwithstanding the foregoing, if the Borrower shall at any time fail to have in effect at least one such rating on the credit facility pursuant to this Agreement, the Borrower shall seek to obtain (if not already in effect), within thirty (30) days after such rating first ceases to be in effect, a corporate family credit rating or a bank loan rating of the Borrower from Xxxxx’x or S&P (or if neither Xxxxx’x nor S&P issues such types of ratings or ratings comparable thereto, from another nationally recognized rating agency approved by each of the Borrower and the Administrative Agent), which rating shall become the Credit Rating upon which the Applicable Facility Fee Rate and the Applicable Margin are based, except that the Applicable Facility Fee Rate and the Applicable Margin will be determined on the basis of ratings that are one notch higher than such corporate family credit rating or bank loan rating, and the Applicable Facility Fee Rate and Applicable Margin in effect prior to the issuance of such corporate credit rating or bank loan rating shall be the same as the Applicable Facility Fee Rate and Applicable Margin, as the case may be, in effect at the time such credit facility rating ceases to be in effect; provided, that if no such rating is issued within such thirty (30) day
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period, then at all times thereafter until such rating is issued, Level VI on the Pricing Grid shall be deemed to apply.
“Currency Rate Protection Agreement” means any foreign currency exchange and future agreements, arrangements and options designed to protect against fluctuations in currency exchange rates and which are not speculative in nature.
“Declining Lender” has the meaning ascribed to such term in Section 2.16.
“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.
“Defaulting Lender” means, subject to Section 2.14(f), any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Revolving Loans, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to the Borrower or the Administrative Agent any other amount required to be paid by it hereunder, unless (in the case of this clause (iii)) such Lender notifies the Administrative Agent in writing that such failure is the result of a good faith dispute with respect to the requirement to pay such amount, (b) has notified the Administrative Agent or the Borrower in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Revolving Loan under this Agreement cannot be satisfied), (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Revolving Loans and participations in then outstanding Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s and the Borrower’s receipt of such certification in form and substance satisfactory to the Borrower and the Administrative Agent, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a Bankruptcy Event, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Bankruptcy Event shall not be deemed to exist for purposes of this definition solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Administrative Agent to the Borrower, each Issuing Bank, and each Lender.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
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“Deposit Account” means any deposit account opened with a demand, time, savings, passbook, or similar account maintained with a commercial bank (or a branch thereof) organized under the laws of the Permitted Jurisdiction, or any other jurisdiction approved by the Administrative Agent.
“Disclosed Matters” has the meaning ascribed to such term in Section 5.4.
“Disqualified Capital Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Equity Interest), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in whole or in part, on or prior to the date that is 91 days after the Original Maturity Date.
“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.
“Drilling Contract” means shall mean any third-party drilling contract, drilling services agreement, charter or similar agreement in respect of any Collateral Rig.
“Earnings” means, in respect of any Collateral Rig, (i) all freight, hire, income and passage moneys payable to the applicable Collateral Rig Operator as a consequence of the operation of such Collateral Rig, including without limitation all payments under any Drilling Contract with respect to such Collateral Rig, including any termination payments or settlement payments in respect thereof, (ii) any claim under any guarantee in respect of such Drilling Contract or otherwise related to freight, hire, income or passage moneys, in each case payable to the Collateral Rig Operator as a consequence of the operation of such Collateral Rig, (iii) any other money whatsoever due or to become due to the applicable Collateral Rig Operator in relation to such Drilling Contract and (iv) any other money received directly or indirectly under such Drilling Contract by such Collateral Rig Operator.
“Earnings Account” means, with respect to any Collateral Rig for which the Collateral Rig Owner is a direct party to the applicable Drilling Contract, the Deposit Account or Deposit Accounts of the Collateral Rig Owner designated as such from time to time by the Collateral Rig Owner in the applicable Account Pledge Agreement into which all Earnings derived with respect to the applicable Collateral Rig are deposited.
“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country” means any of the member states of the Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxx Xxxxxxx and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” has the meaning ascribed to such term in Section 4.1.
“Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar®, Debtdomain®, SyndTrak® and any other internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent or any Issuing Bank or any of its respective Related Parties or any other Persons, providing for access to data protected by passcodes or other security system.
“Eligible Assignee” means any Person that meets the requirements to be an assignee pursuant to Section 10.10(a) (subject to such consents, if any, as may be required pursuant to Section 10.10(a)(iii)).
“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.
“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 or natural resources.
“Environmental Law” means any applicable foreign, 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 pollution, or protection of the environment, or natural resources, or, to the extent relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of any Hazardous Materials, health and safety.
“Equity Interest” means as to any Person, any capital stock, shares, partnership interest, membership interest, quota or other equity interest in such Person, or any warrant, option or other right to acquire any Equity Interest in such Person (but excluding any debt security convertible into or exchangeable for Equity Interests, regardless of whether such debt securities include any right of participations with Equity Interests).
“Equity Owners” means, at any time, Holdings or any Subsidiary of Holdings that directly owns the Equity Interests in a Collateral Rig Owner.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
“ERISA Affiliate” means, any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(m) of the Code.
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“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Plan of any “unpaid minimum required contribution” or “accumulated funding deficiency” (as defined or otherwise set forth in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412 of the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans under Section 4041(c) of ERISA or to appoint a trustee to administer any Plan under Section 4042(b) of ERISA; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability, or stating that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA, or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Euro” or “€” 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 Revolving Loan or Borrowing, means such Revolving Loan, or the Revolving Loans comprising such Borrowing, shall bear interest at a rate determined by reference to Adjusted LIBOR and the Applicable Margin.
“Eurocurrency Borrowing” means a Borrowing of Eurocurrency Loans made pursuant to a Borrowing Request as provided in Section 2.3(a) or continued as Eurocurrency Loans or converted to Eurocurrency Loans from Base Rate Loans pursuant to Section 2.3(b).
“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.
“Event of Loss” means, with respect to any Rig of the Consolidated Group, any of the following events: (x) the actual or constructive total loss of a Rig or the agreed or compromised total loss of a Rig; or (y) the capture, condemnation, confiscation, requisition for title and not hire, purchase, seizure or forfeiture of, or any taking of title to, a Rig. An Event of Loss shall be deemed to have occurred: (i) in the event of an actual loss of a Rig, at the time and on the date of such loss or if that is not known at noon Greenwich Mean Time on the date which such Rig was last heard from; (ii) in the event of damage which results in a constructive or compromised or arranged total loss of a Rig, at the time and on the date on which notice claiming the loss of the Rig is given by a Member of the Consolidated Group to the insurers; or (iii) in the case of an event referred to in clause (y) above, at the time and on the date on which such event is expressed to take effect by the Person making the same.
“Exchange Rate” means on any day (or if such day is not a Business Day, on the immediately preceding Business Day), for purposes of determining the Dollar Equivalent of any other currency, the rate
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at which such other currency may be exchanged into U.S. Dollars as set forth at approximately 11:00 a.m., London time, on such date on the Reuters World Currency Page for such currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with respect to such currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such currency on the London market at 11:00 a.m., London time, on such date for the purchase of U.S. Dollars with such currency, for delivery two (2) 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.
“Excluded Accounts” means deposit or securities accounts that are designated solely as accounts for, and are used solely for, payroll funding, employee compensation, employee benefits or taxes, in each case in the ordinary course of business.
“Excluded Collateral Rig” means any Collateral Rig (i) for which the classification required to be maintained pursuant to Section 6.17(a) (excluding the proviso thereto) has lapsed, and such lapse has continued for sixty (60) days or such longer period as the Administrative Agent may determine in its sole discretion or (ii) that has been arrested or detained, and such arrest or detention has continued for sixty (60) days or such longer period as the Administrative Agent may determine in its sole discretion.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an ECP at the time the guarantee of such Guarantor becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an interest in a Revolving Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender becomes a party hereto, or (B) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 3.3, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Applicable Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.3(g), and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” means the Amended and Restated Credit Agreement, dated as of June 30, 2014, among the Borrower, JPMorgan Chase Bank, N.A., as administrative agent, the issuing banks and other lenders party thereto from time to time.
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“Existing Letters of Credit” means those Letters of Credit issued by an Initial Issuing Bank and outstanding as of the Effective Date, to the extent described on Schedule 1.1-E.
“Extended Commitment Termination Date” has the meaning ascribed to such term in Section 2.12(b).
“Extending Lender” has the meaning ascribed to such term in Section 2.16.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with such sections of the Code and any legislation, law, regulation, guidance or practice enacted or adopted pursuant to such intergovernmental agreement.
“Fair Market Value” means, with respect to any Collateral Rig, the average of the fair market values given to such Rig in the most recently delivered Appraisals; provided that any Rig that has suffered an Event of Loss shall be deemed to have a Fair Market Value equal to its insured value until the date that is the earlier of (i) 180 days after such Event of Loss and (ii) the date that the insurer(s) in respect thereof has formally declined coverage for such Event of Loss.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the nearest 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the nearest 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Flag Jurisdiction Transfer” means the transfer of the registration and flag of any Collateral Rig from one Acceptable Flag Jurisdiction to another Acceptable Flag Jurisdiction, provided that the following conditions are satisfied in connection with such transfer:
(i)on any Flag Jurisdiction Transfer Date, the Collateral Rig Owner shall have duly authorized, executed and delivered to the Collateral Agent, and caused to be recorded (or made arrangements for the recordation substantially simultaneously with such date) in the appropriate rig registry a Mortgage with respect to such Rig;
(ii)substantially simultaneously with any Flag Jurisdiction Transfer Date, all filings (appropriate Financing Statements (Form UCC-1) for filing under the Uniform Commercial Code of each relevant jurisdiction or similar filings in foreign jurisdictions), registrations, recordations, notifications, deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Administrative Agent to perfect and preserve the security interests described above shall have been duly effected and the Administrative Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Administrative Agent;
(iii)substantially simultaneously with any Flag Jurisdiction Transfer Date, the Administrative Agent shall have received certificates of ownership or encumbrance (or similar certificates) from appropriate authorities evidencing (or confirmation updating previously reviewed certificates and indicating) that such Rig is registered in the name of the Collateral Rig Owner in
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the register of the Acceptable Flag Jurisdiction to which such Rig is being transferred and that such Rig is free from Liens other than Permitted Collateral Liens; and
(iv)on any Flag Jurisdiction Transfer Date, the Administrative Agent shall have received from special counsel to the Collateral Rig Owner or the Administrative Agent, as the case may be, in the jurisdiction of the flag to which such Collateral Rig is being transferred (which shall be Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP, in the case of Xxxxxxxx Islands and Vanuatu, or another law firm qualified to render an opinion as to the law of each such jurisdiction reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent, the Collateral Agent and each of the Lenders, which opinion shall (x) be in form, scope and substance reasonably acceptable to the Administrative Agent and (y) cover the perfection of the security interests granted pursuant to the new Mortgage and such other matters incident thereto as the Administrative Agent may reasonably request; and
(v)each of the applicable Collateral Rig Owner and Collateral Rig Operator shall be qualified to own or operate, as applicable, such Collateral Rig under the laws of the Acceptable Flag Jurisdiction applicable to such Collateral Rig and the laws of the jurisdiction in which such Collateral Rig is then employed.
“Flag Jurisdiction Transfer Date” means the date on which a Flag Jurisdiction Transfer occurs.
“Fleet Status Certificate” means a certificate delivered by a responsible officer of the Borrower to the Administrative Agent certifying as to the fleet status of each Rig wholly owned by Holdings, any of its Subsidiaries, or any Local Content Entity prepared on the same basis, and in the same form, substance, and detail (subject to deletion of pricing information), as Holdings would provide in a published fleet status report posted to Holding’s website and indicating the name, fleet status and contract status (with contract term indicated) of each such Rig.
“Foreign Lender” means, if the Borrower is a U.S. Person, a Lender that is not a U.S. Person.
“Foreign Plan” means any pension, profit sharing, deferred compensation, or other employee benefit plan, program or arrangement (whether or not subject to ERISA) that is not subject to U.S. law and is maintained by the Borrower, Holdings, or any non-U.S. Subsidiary of the Borrower or Holdings, but shall not include any benefit provided by a foreign government or its agencies.
“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations with respect to Letters of Credit issued by such Issuing Bank, other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with Section 2.14.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“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, including, as applicable, the International Financial Reporting Standards.
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“GMI Litigation” means the litigation related to that certain Indenture between Global Marine Inc., a Delaware corporation, and Wilmington Trust Company, as trustee (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), governing, inter alia, Global Marine Inc.’s $300,000,000 of outstanding 7.00% Notes due June 2028, as described in Holding’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2017.
“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 (including any supranational bodies such as the European Union or the European Central Bank).
“Guarantee Coverage Ratio” has the meaning ascribed thereto in Section 6.22.
“Guarantee Coverage Ratio Cure Period” has the meaning ascribed thereto in Section 6.27(c).
“Guaranteed Cash Management Agreement” means any Cash Management Agreement that is entered into by and between Holdings or any of its Subsidiaries and any Cash Management Bank.
“Guaranteed Hedge Agreement” means any Swap Contract permitted under Article VI that is entered into by and between Holdings or any of its Subsidiaries and any Hedge Bank.
“Guaranteed Obligations” means (i) the Obligations and (ii) any and all obligations owing under Guaranteed Hedge Agreements and Guaranteed Cash Management Agreements; provided, that the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor.
“Guarantor” means each of (i) Holdings, (ii) Holdco 4, Holdco 5 and, Holdco 6, Holdco 7, Holdco 8 and Holdco 9, (iii) each Collateral Rig Owner and, (iv) and each other Subsidiary or Local Content Entity of Holdings which owns a Rig (other than a Collateral Rig) and which becomes a Guarantor to ensure compliance with the Guarantee Coverage Ratio (theeach entity referred to in this clause (iv), thean “Additional Guarantor”), and (v) each Subsidiary or other Person which becomes a “Guarantor” in accordance with the requirements of Section 6.10(b), (c), (e) or (f), as applicable, upon the assumption of all obligations of Holdings or any Core Subsidiary Guarantor, as applicable, until, in each case, released in accordance with this Agreement.
“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
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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.
“Guaranty Agreements” means each of (i) the Holdings Guaranty Agreement and (ii) the Subsidiary Guaranty Agreement.
“Guaranty Supplement” means a supplement to the Subsidiary Guaranty Agreement substantially in the form attached thereto (which shall include any local law-required limitations and such other changes, in each case, as the Administrative Agent may reasonably agree).
“Hazardous Material” has the meaning ascribed to such 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, petroleum distillates, asbestos and asbestos containing materials, polychlorinated biphenyls 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 other Members of the Consolidated Group.
“Hedge Bank” means any Person, in its capacity as a party to any Swap Contract, that (i) with respect to such Swap Contract, was in existence at the time such Person became a Lender or an Affiliate of a Lender or (ii) with respect to such Person, was a Lender or an Affiliate of a Lender at the time it entered into such Swap Contract.
“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.
“Holdco 1” means Transocean Holdings 1 Limited, a Cayman Islands exempted company.
“Holdco 2” means Transocean Holdings 2 Limited, a Cayman Islands exempted company.
“Holdco 3” means Transocean Holdings 3 Limited, a Cayman Islands exempted company.
“Holdco 4” means Transocean Asset Holdings 1 Limited, a Cayman Islands exempted company.
“Holdco 5” means Transocean Asset Holdings 2 Limited, a Cayman Islands exempted company.
“Holdco 6” means Transocean Asset Holdings 3 Limited, a Cayman Islands exempted company.
“Holdco 7” means Transocean Sub Asset Holdings 1 Limited, a Cayman Islands exempted company.
“Holdco 8” means Transocean Sub Asset Holdings 2 Limited, a Cayman Islands exempted company.
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“Holdco 9” means Transocean Sub Asset Holdings 3 Limited, a Cayman Islands exempted company.
“Holdings” means Transocean Ltd., a Swiss corporation registered in Zug, Switzerland and the sole shareholder of the Borrower.
“Holdings Guaranty Agreement” means that certain Holdings Guaranty Agreement executed by Holdings and the Borrower, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, guaranteeing the Guaranteed Obligations.
“Impacted Interest Period” has the meaning ascribed to such term in the definition herein of “LIBO Rate.”
“Increase Date” has the meaning ascribed to such term in Section 2.17(a).
“Increasing Lender” has the meaning ascribed to such term in Section 2.17(b).
“Incremental Secured Debt Amount” has the meaning ascribed to such term in Section 6.11(u).
“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 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 Swap Contracts; and (vii) obligations of such Person pursuant to a Guaranty of any of the foregoing obligations of another Person; provided, however, Indebtedness shall exclude (x) Non-recourse Debt, and (y) 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 Swap Contracts that have not been cancelled or otherwise terminated before their scheduled expiration, in each case in respect of Swap Contracts 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.
“Indemnified Parties” has the meaning ascribed to such term in Section 10.13(b).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Loan Party under any Credit Document and (b) to the extent not otherwise described in the preceding clause (a), Other Taxes.
“Information” has the meaning ascribed to such term in Section 10.15(a).
“Initial Issuing Banks” has the meaning ascribed to such term in the definition herein of “Issuing Bank.”
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“Intercompany Subordination Agreement” means, collectively, (i) the agreement pursuant to which the intercompany obligations of each Loan Party under the Master Services Agreement effective as of January 1, 2008, as amended, restated, supplemented and otherwise modified from time to time, by and among TODDI, GlobalSantaFe Corporate Services Inc., the Borrower and certain affiliates of TODDI party thereto from time to time and (ii) the agreement(s) pursuant to which any other material intercompany obligations for payments made (x) by any Loan Party to any Subsidiary other than a Loan Party and/or (y) by any Subsidiary Guarantor to any Member of the Consolidated Group other than a Subsidiary Guarantor, in each case are subordinated to the Obligations, in each case, in form and substance reasonably acceptable to the Administrative Agent.
“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 Eurocurrency 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 an Eurocurrency Loan as part of such Borrowing, any other period), in each case as the Borrower may elect, subject to Section 2.4. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interest Rate Protection Agreement” means 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 and which are not speculative in nature.
“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available for the applicable currency of the Eurocurrency Borrowing that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period for which the LIBO Screen Rate is available for the applicable currency of the Eurocurrency Borrowing that exceeds the Impacted Interest Period, in each case, at such time.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“ISM Code” means the International Safety Management Code.
“ISPS Code” means the International Ship and Port Facility Security Code.
“Issuance Request” has the meaning ascribed to such term in Section 2.12(b).
“Issuing Bank” means each of Citibank, N.A., Xxxxx Fargo Bank, National Association, Crédit Agricole Corporate and Investment Bank and DNB Bank ASA, New York Branch (collectively, the “Initial
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Issuing Banks”), and each other Lender (or such Lender’s Affiliate) (as designated by the Borrower and approved by the Administrative Agent in its reasonable discretion (not to be unreasonably withheld or delayed)) agreeing with the Borrower and the Administrative Agent to act as an Issuing Bank in respect of a Letter of Credit requested by the Borrower to be issued under this Agreement. Any Issuing Bank may, in its discretion and subject to approval by the Borrower (provided that such approval (i) shall not be required with respect to an arrangement by Citibank, N.A. for one or more Letters of Credit to be issued by Citibank Europe plc, UK Branch and (ii) shall not be otherwise unreasonably withheld or delayed), arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued or to be issued by such Affiliate.
“Issuing Bank Agreement” means (i) with respect to any Initial Issuing Bank, this Agreement, together with any other written agreement between such Issuing Bank and the Borrower entered into after the Effective Date that limits the total stated amounts and the currencies in which such Issuing Bank will issue Letters of Credit, and (ii) with respect to any Issuing Bank designated as such after the Effective Date in accordance with the terms of this Agreement, an agreement that is in a form satisfactory to the Borrower and the Administrative Agent, which has been executed by such Issuing Bank, the Borrower, and the Administrative Agent.
“Issuing Bank Exchange Rate” has the meaning ascribed to such term in Section 10.19(a).
“Joint Lead Arrangers” means, collectively, Citibank, N.A., Xxxxx Fargo Securities, LLC, Xxxxxxx Xxxxx Bank USA and DNB Markets, Inc., acting in their capacities as joint lead arrangers, and Citibank, N.A., acting in its capacity as sole bookrunner, for the credit facility described in this Agreement; provided, however, that none of such Joint Lead Arrangers shall have any duties, responsibilities, or obligations hereunder in such capacity.
“Krone” means the currency of the Kingdom of Norway and its dependent territories.
“L/C Documents” means the Letters of Credit, the Issuance Requests and Applications with respect thereto, any draft or other document presented in connection with a drawing thereunder, and this Agreement.
“L/C Exposure” means with respect to any Lender at any time, such Lender’s Applicable Percentage of all L/C Obligations then outstanding.
“L/C Obligations” means, as at any date of determination, the aggregate amounts available to be drawn under all outstanding Letters of Credit plus the aggregate amounts of all outstanding Reimbursement Obligations. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.12(e). For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lender” means each Person signing this Agreement as a “Lender” and having a Commitment as set forth on Schedule 1.1-C, and any other Person that shall have become a party hereto pursuant to an Assignment Agreement or an Assumption Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment Agreement. Unless the context otherwise requires, the term “Lenders” includes the Issuing Banks.
“Lender Parties” has the meaning ascribed to such term in Section 10.24.
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“Letter of Credit” means any of the standby letters of credit to be issued by an Issuing Bank for the account of the Borrower pursuant to Section 2.12(a).
“Letters of Credit Maximum Amount” means, at any time, the lesser of (i) $500,000,000 and (ii) the Revolving Credit Commitments Amount in effect at such time; provided, however, that (x) no Initial Issuing Bank shall be required to issue Letters of Credit or have outstanding at any time L/C Obligations with an aggregate Dollar Equivalent in excess of the amount shown as the “L/C Subcommitment Amount” of such Initial Issuing Bank as set forth in Part II of Schedule 1.1-C, except as may otherwise be agreed in writing by such Initial Issuing Bank, and (y) no other Issuing Bank shall be required to issue Letters of Credit or have outstanding at any time L/C Obligations with an aggregate Dollar Equivalent in excess of an amount to be agreed in writing by the Borrower and such Issuing Bank.
“LIBO Rate” means, with respect to any Eurocurrency Borrowing, for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate for Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute Reuters page or screen that displays such rate, or on the appropriate page or screen of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) (in each case, such screen, the “Applicable Screen” and such rate, the “LIBO Screen Rate”) at approximately 11:00 a.m., London time, two Business Day prior to the first day of such Interest Period, provided, that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement, and provided, further, if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”), the LIBO Rate for such Eurocurrency Borrowing shall be the Interpolated Rate, provided, that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“LIBO Screen Rate” has the meaning ascribed to such term in the definition herein of “LIBO Rate.”
“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, charge, conditional sale, security agreement or trust receipt, or a lease (including a capital 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.
“Loan Party” means the Borrower and each Guarantor.
“Local Content Entity” means any Affiliate of Holdings (a) that owns or operates a Rig and (b) the capital stock or other Equity Interests of which is jointly owned by Holdings or any Subsidiary(ies) and any other Person(s) but only to the extent required or necessary under local law to own capital stock or other Equity Interests in the Local Content Entity as a condition for the ownership or operation of such Rig in such jurisdiction.
“MAPI” means Mortgagees Additional Perils (Pollution) Insurance
“Marketed Rig” means a Rig owned by a Loan Party that is actively marketed for employment, and that is not classified in the most recent of (a) the fleet status report most recently posted to Holdings’ website or (b) the Fleet Status Certificate most recently delivered, as stacked, held for sale, or another non-
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marketable classification; provided that, for the avoidance of doubt, each Contracted Rig shall constitute a Marketed Rig. Notwithstanding the foregoing, Holdings may designate any Rig that is actively being marketed for employment, but which is listed as stacked or another non-marketable classification on its most recently delivered fleet status report or Fleet Status Certificate, as a “Marketed Rig”; provided that (i) no more than three such Rigs may be designated as Marketed Rigs at any one time and (ii) no such Rig may be designated as a Marketed Rig for longer than 180 days before such Rig either (x) is listed with a marketable classification on a published fleet status report or a Fleet Status Certificate delivered to the Administrative Agent or (y) ceases to be designated as a Marketed Rig.
“Material Adverse Effect” means a material adverse effect on (i) the business, assets, financial condition or results of operations of (A) the Borrower, Holdings, and other Members of the Consolidated Group, taken as a whole, or (B) the Transaction Parties, taken as a whole, (ii) the Borrower’s or any Guarantor’s ability to perform any of its payment or other material obligations under this Agreement or the other Credit Documents, or (iii) the rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders under the Credit Documents.
“Material Indebtedness” means Indebtedness in an aggregate principal amount of more than the Dollar Equivalent of (x) $125,000,000 of the Borrower, Holdings, and/or other Members of the Consolidated Group owed to any Persons other than Members of the Consolidated Group or (y) $50,000,000 of the Subsidiary Guarantors owed to any Persons other than other Subsidiary Guarantors.
“Material Plan” has the meaning ascribed to such term in Section 7.1(i).
“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.
“Member of the Consolidated Group” has the meaning ascribed to such term in the definition of the “Consolidated Group”.
“MII” means Mortgagees’ Interest Insurance.
“Minimum Liquidity Ratio” means, as of any measurement date, the ratio of (a) Available Liquidity on such measurement date to (b) the sum of unsecured bond maturities and other scheduled payments in respect of Indebtedness for borrowed money of the Consolidated Group (other than intercompany Indebtedness among Holdings and its Wholly-Owned Subsidiaries, Permitted Rig Debt, and Acquired Rig Debt), in each case scheduled to occur within the twelve months immediately following the date of measurement, plus any capital expenditures of the Consolidated Group (including without limitation in connection with the construction, acquisition, maintenance, renovation, upgrade, or re-activation of a Rig, but excluding (i) any capital expenditures made with the proceeds of a permitted disposition or from a casualty event to the extent such proceeds are not included in the Available Liquidity calculation and are not required to be applied as a prepayment of Indebtedness and (ii) any capital expenditures of the Consolidated Group made with the proceeds of Permitted Rig Debt in connection with construction, renovation or repair of any Contracted Rig subject to such Permitted Rig Debt) scheduled to occur within the twelve months immediately following the date of measurement.
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor thereto.
“Mortgage” means a first preferred vessel mortgage (subject to certain Permitted Collateral Liens) with respect to each Collateral Rig, assets solely related thereto and proceeds therefrom in favor of the Collateral Agent securing the Obligations, in form and substance reasonably acceptable to the
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Administrative Agent, as such mortgage may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA and to which the Borrower, Holdings or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
“New Guarantor Documentation” shall mean, with respect to any entity which is to become a Guarantor:
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-recourse Debt” means (i) any Indebtedness incurred by any Project Financing Subsidiary to finance the acquisition, improvement, design, engineering, construction, development, completion, maintenance or operation of, or otherwise to pay costs and expenses relating to or incurred in connection with the foregoing for, any Rig (other than a Collateral Rig), which Indebtedness does not provide for recourse against Holdings, the Borrower or any other Member of the Consolidated Group (other than to such Project Financing Subsidiary, and such recourse as exists under a Performance Guaranty given for the
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benefit of such Project Financing Subsidiary) or any property or asset of Holdings, the Borrower or any other Member of the Consolidated Group (other than Equity Interests of, and such Rig (other than a Collateral Rig) and related assets of, such Project Financing Subsidiary, and such recourse as exists under a Performance Guaranty given for the benefit of such Project Financing Subsidiary) and (ii) any refinancing of such Indebtedness that does not increase the outstanding principal amount thereof (other than to pay costs incurred in connection therewith and the capitalization of any interest, fees or premium) at the time of the refinancing, increase the property subject to any Lien securing such Indebtedness, or provide for recourse against any other Member of the Consolidated Group.
“Non-Refundable Portion” has the meaning ascribed to such term in Section 2.6(d).
“Note” has the meaning ascribed to such term in Section 2.8(e).
“Obligation Currency” has the meaning ascribed to such term in Section 10.18.
“Obligations” means all obligations of the Transaction Parties (i) to pay fees, costs and expenses under this Agreement or the other Credit Documents, (ii) to pay principal and interest on all Revolving Loans and Reimbursement Obligations, (iii) to pay any other obligations to the Administrative Agent or any Lender or Issuing Bank arising under this Agreement or the other Credit Documents, and (iv) to provide Cash Collateral as required by this Agreement, in each case including any such interest, fees or other monetary obligations accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether such interest, fees or other monetary obligations are allowed or allowable in such proceeding.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury and any Governmental Authority succeeding to the regulatory jurisdiction thereof.
“Original Maturity Date” has the meaning ascribed to such term in the definition of “Commitment Termination Date.”
“Other Agents” means, collectively, the Syndication Agent and the Co-Documentation Agents.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, any Credit Document, or sold or assigned an interest in any Revolving Loan, L/C Obligations, or Credit Document).
“Other Taxes” means any present or future stamp, court, documentary, intangible, recording, filing, excise, property or other similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment under Section 8.6).
“Participant” has the meaning ascribed to such term in Section 10.10(c).
“Participant Register” has the meaning specified in Section 10.10(c).
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“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001, as amended from time to time.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Performance Guaranties” means all Guaranties of the Borrower, Holdings, or any other Member of the Consolidated Group delivered in connection with the construction financing of Rigs for which firm Drilling Contracts have been obtained by the Borrower, Holdings, or any other Member of the Consolidated Group or an SPV.
“Performance Letters of Credit” means any Letter of Credit issued in the ordinary course of business (a) for the benefit of local customs or similar Governmental Authorities in respect of performance obligations under temporary import duty laws, (b) for the benefit of a third-party counterparty to support the performance obligations of (and not the financial obligations of) Holdings, any of its Subsidiaries or any Local Content Entity in connection with a Drilling Contract, (c) to support bid bonds, performance bonds and other similar obligations, and (d) any other Letter of Credit that is agreed between the Borrower and the Administrative Agent (in consultation with the Lenders) to be a “Performance Letter of Credit” (such consent of the Administrative Agent not to be unreasonably withheld or delayed).
“Permitted Business” has the meaning ascribed to such term in Section 6.8.
“Permitted Collateral Liens” means the Liens permitted as described in clauses (a)(i) and (b) through (f) of Section 6.11.
“Permitted Jurisdiction” means, (i) as to the Borrower and Holdings, any of Switzerland, England and Wales, Scotland, Luxembourg, Ireland, the Xxxxxxxx Islands, the Netherlands, British Virgin Islands, Bahamas, the Cayman Islands and the United States or any State thereof (including the District of Columbia) and any other jurisdiction approved by the Administrative Agent in its reasonable discretion, (ii) as to the Core Subsidiary Guarantors, any of (x) Australia, Switzerland, England and Wales, Scotland, Luxembourg, Ireland, Hungary, the Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx, the Netherlands, Germany, Sweden, Belgium, Singapore, Mauritius, British Virgin Islands, the Bahamas, the Cayman Islands, the United States or any State thereof (including the District of Columbia) and any other jurisdiction approved by the Administrative Agent in its reasonable discretion and (y) so long as such jurisdiction is a member of the European Union, France, Spain, Italy, Austria, Finland and Portugal, and (iii) as to any Earnings Account or Bareboat Charter Account held by a Collateral Rig Owner, any of Australia, Switzerland, England and Wales, Scotland, Luxembourg, Ireland, Hungary, the Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx, the Netherlands, Singapore, Mauritius, British Virgin Islands, the Bahamas, any other current or former member of the European Union, the Cayman Islands, the United States or any State thereof (including the District of Columbia), any other jurisdiction where, under applicable law, the operation of the applicable Collateral Rig requires the owner to have a local bank account, and any other jurisdiction approved by the Administrative Agent in its reasonable discretion.
“Permitted Liens” means the Liens permitted as described in Section 6.11.
“Permitted Rig Debt” has the meaning ascribed to such term in 6.12(i).
“Person” means an individual, partnership, corporation, limited liability company, exempted company, association, trust, unincorporated organization or any other entity or organization, including any Governmental Authority.
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“Plan” means any employee benefit pension plan (other than a Multiemployer Plan), subject to the provisions of Title IV of ERISA or Sections 412 and 430 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such Plan were terminated, would under Sections 4062 and 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Pricing Grid” means the table specifying the Applicable Facility Fee Rates and Applicable Margins based on Credit Ratings from time to time in effect, as set forth on Schedule1.1-P hereto.
“Prime Rate” means the fluctuating commercial loan rate announced by the Administrative Agent from time to time at its New York 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 prime rate or base rate as so announced may not be the lowest rate charged by the Administrative Agent on such loans to any of its customers), with any change in such prime rate or base rate resulting from a change in such announced rate to be effective on the date of the relevant change.
“Pro Forma Compliance” means, as of any date of determination, pro forma compliance (after giving effect to the application of any proceeds resulting from any transactions occurring on such date and the delivery of any Guaranty Supplement and related New Guarantor Documentation and/or satisfaction of the Collateral Rig Requirements with respect to any Rig on such date) with all financial covenants set forth in Sections 6.20 through Section 6.23 as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered (or should have been delivered) pursuant to this Agreement, including the Guarantee Coverage Ratio Covenant and Collateral Coverage Ratio; provided that, with respect to any Pro Forma Compliance Event, the Borrower shall have delivered to the Administrative Agent a certificate of a responsible officer of the Borrower setting forth a detailed calculation of such covenants as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to this Agreement on a pro forma basis after giving effect to any event or action with respect to which such pro forma calculation is required; and provided that, for purposes of such determination, status as a Marketed Rig shall be determined based on the most recent of (i) the fleet status report most recently posted to Holding’s website and (ii) the Fleet Status Certificate most recently delivered, including, at the Borrower’s option, an updated Fleet Status Certificate.
“Pro Forma Compliance Event” means, as applicable, the incurrence of any Indebtedness or any Lien securing Indebtedness, in each case, in an aggregate principal amount in excess of $100,000,000, the making of any Restricted Payment permitted under Section 6.25(a) or Redemption of any Indebtedness in an amount in excess of $50,000,000, any Restricted Payment permitted under Section 6.25(e) in an amount in excess of $10,000,000 or the sale or other disposition of a Collateral Rig with a Rig Value in excess of $100,000,000.
“Project Financing Subsidiary” means any Subsidiary of Holdings or the Borrower (other than any Transaction Party) created for the sole purpose of incurring Non-recourse Debt to finance the acquisition, improvement, design, engineering, construction, development, completion, maintenance and operation of, or otherwise pay the costs and expenses relating to or incurred in connection with the foregoing for, any Rig (other than a Collateral Rig), and to conduct the business activities for which such Non-recourse Debt was incurred, provided that substantially all of the assets of such Person are comprised of such Rig so financed.
“PTE” means any prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Purchasing Lender” has the meaning ascribed to such term in Section 2.17(e).
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“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to such term in Section 10.26.
“Qualified Local Partner” means any Person other than Holdings or any of its Subsidiary(ies) that owns Equity Interests of a Local Content Entity and that agrees that it shall only have the right to receive de minimis dividends, other similar payments or distributions from the Local Content Entity to the extent required or necessary under local law, including upon any liquidation, dissolution or winding up of the applicable Local Content Entity.
“Reactivation Costs” means any and all costs and expenses associated with the reactivation of a Rig from a stacked condition incurred or accrued through the date such Rig commences commercial operation pursuant to a drilling contract.
“Recipient” means (i) the Administrative Agent, (ii) each Lender, and (iii) each Issuing Bank, as applicable.
“Redemption” means, with respect to any Indebtedness, the repurchase, redemption, prepayment, repayment, defeasance or any other acquisition or retirement for value of such Indebtedness. “Redeem” has the correlative meaning thereto.
“Redomestication Transaction” means a transaction that (i) is permitted pursuant to Section 6.10(a) and (b), (ii) effects a redomestication of Holdings or the Borrower in a Permitted Jurisdiction, and (iii) does not result in ownership of the voting shares of the surviving redomesticated company in such transaction that would constitute an Event of Default pursuant to Section 7.1(j) as a result of a corresponding change in share ownership of Holdings.
“Register” has the meaning ascribed to such term in Section 10.10(b).
“Reimbursement Obligations” has the meaning ascribed to such term in Section 2.12(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Replacement Lender” has the meaning ascribed to such term in Section 2.16.
“Required Lenders” means, at any time, subject to Section 2.14(b), 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 at such time (in each case determined on the basis of the Dollar Equivalent of any amounts denominated in any Alternative Currencies).
“Reset Date” has the meaning ascribed to such term in Section 10.19.
“Restricted Payment” means, in relation to any Loan Party, any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of such Loan Party, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
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termination of any such capital stock or other Equity Interest, or on account of any return of capital to such Loan Party’s stockholders, partners or members (or the equivalent thereof). Unless otherwise specified, any reference in this Agreement to a “Restricted Payment” shall refer to a Restricted Payment with respect to Equity Interests of Holdings.
“Revolving Credit Commitments Amount” means the aggregate amount of Commitments in effect from time to time hereunder, such aggregate amount being $1,000,000,000 on the Effective Date, as such amount may hereafter be reduced or increased 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 such Lender’s Applicable Percentage of the Revolving Obligations.
“Revolving Loan” means each of the Loans made pursuant to Section 2.1.
“Revolving Obligations” means, at any time, the sum of the Dollar Equivalent of the principal amount of all Revolving Loans and L/C Obligations outstanding at such time.
“Rig” means any mobile offshore drilling unit (including without limitation any xxxx-up rig, semi-submersible rig, drillship and barge rig).
“Rig Exchange” means the exchange of an Additional Rig for an Acceptable Rig; provided that, in each case, the Collateral Rig Requirements shall have been satisfied with respect to such Acceptable Rig on or prior to the Rig Exchange Date applicable thereto to the reasonable satisfaction of the Administrative Agent.
“Rig Exchange Date” means, with respect to any Additional Rig that is the subject of a Rig Exchange, the date on which such Rig Exchange occurs.
“Rig Value” means, with respect to any Rig, the net book value (determined in accordance with GAAP) of such Rig, as reflected in Holdings’ most recent balance sheet; provided that, with respect to the determination of the Rig Value of any Rig acquired after the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to this Agreement, or to be acquired on the date of such determination, the Rig Value of such Rig shall be as reasonably agreed by the Borrower and the Administrative Agent; provided, further that any Rig that has suffered an Event of Loss shall be deemed to have a net book value equal to its insured value until the date that is the earlier of (i) 180 days after such Event of Loss and (ii) the date that the insurer(s) in respect thereof has formally declined coverage for such Event of Loss.
“Sale-Leaseback Transaction” means any arrangement whereby the Borrower or any other Member of the Consolidated Group 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; provided, however, Sale-Leaseback Transaction shall exclude any transaction between Members of the Consolidated Group.
“Sanctioned Country” means, at any time of determination, a country or territory that is itself, or a country or territory whose government is, subject to a sanctions program identified on the list maintained by OFAC and available at xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/Xxxxxxxx/Xxxxx/Xxxxxxxx.xxxx, or as otherwise published from time to time, or subject to any other sanctions program of the United States of America, the United Nations, the Norwegian State, the European Union, the United Kingdom or any agency or subdivision thereof.
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“Sanctioned Person” means, at any time of determination, (a) a Person or vessel named, or 50% or more owned or otherwise controlled by a Person named, on (x) the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/XXX-Xxxx/Xxxxx/xxxxxxx.xxxx, or as otherwise published from time to time, or any replacement sanctions-related list maintained by OFAC or the United States of America; (y) the Executive Order 13599 List maintained by OFAC available at xxxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/Xxxxxxxx/Xxxxx/00000_xxxx.xxxx, or as otherwise published from time to time, and (z) the Foreign Sanctions Evaders List maintained by OFAC available at xxxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/XXX-Xxxx/Xxxxx/xxx_xxxx.xxxx or as otherwise published from time to time; (b) a Person named, or 50% or more owned or otherwise controlled by a Person named, on the lists maintained by the United Nations Security Council available at xxxx://xxx.xx.xxx/xx/xxxxxxxxxx/xxxx_xxxxxxx.xxxxx, or as otherwise published from time to time, (c) a Person named, or 50% or more owned or otherwise controlled by a Person named, on the lists maintained by the European Union available at xxxx://xxxx.xxxxxx.xx/xxxx/xxxxxxxxx/xxxxxx-xxxx_xx.xxx, or as otherwise published from time to time, (d) a Person named, or 50% or more owned or otherwise controlled by a Person named, on the lists maintained by Her Majesty’s Treasury available at xxxx://xxx.xx-xxxxxxxx.xxx.xx/xxx_xxxxxxxxx_xxxxx.xxx, or as otherwise published from time to time, (e) any Person (including any Governmental Authority of any Sanctioned Country) operating, organized, domiciled, registered or resident in a Sanctioned Country, (f) any Person or vessel owned or controlled by, or acting on behalf of, any such Person described in clauses (a) through (e), or (g) any Person or vessel with which any Lender is prohibited under Sanctions relevant to it from dealing or engaging in transactions.
“Sanctions” means any sanctions, including economic or financial sanctions, or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, the Member States of the European Union, Her Majesty’s Treasury of the United Kingdom, Norway, the State Secretariat for Economic Affairs of Switzerland or the Swiss Directorate of International Law, and any other applicable Governmental Authority or any agency or subdivision of the foregoing, and shall include any regulations, rules, and executive orders issued in connection therewith.
“S&P” means Standard & Poor’s Ratings Group or any successor thereto.
“Scheduled Commitment Termination Date” means the earlier of (i) the Original Maturity Date (subject to the extension thereof pursuant to Section 2.16) and (ii) if the Borrower’s Senior Notes due 2023 (or any refinancing or replacement thereof (other than the Loans) to the extent such refinancing or replacement has a stated maturity date that is earlier than 91 days after the Original Maturity Date) are outstanding in an aggregate principal amount in excess of $300,000,000, the date that is 91 days prior to the earliest stated maturity of such Indebtedness.
“SEC” means the Securities and Exchange Commission and any Governmental Authority succeeding to the regulatory jurisdiction thereof.
“Senior Notes due 2023” means the Borrower’s 9.00% Senior Notes due 2023, issued under that certain Indenture dated as of July 21, 2016, among the Borrower, Holdings, the subsidiary guarantors party thereto and Xxxxx Fargo Bank, National Association, as trustee.
“Secured Obligations” means the Obligations in an amount not to exceed at any time the CNTA Threshold.
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“Share Pledge Agreement” has the meaning ascribed to such term in the definition of “Collateral Rig Requirements”.
“Significant Subsidiary” has the meaning ascribed to it under Regulation S-X promulgated under the Securities Exchange Act of 1934, as amended.
“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
“Specified Jurisdictions” means Cyprus, Hungary, Switzerland, Norway, Canada, India and the United Kingdom.
“Specified Period” means any period commencing with the delivery of a Compliance Certificate pursuant to Section 6.6(b) setting forth a Total Leverage Ratio in excess of 10.00:1.00 and ending with the delivery of a Compliance Certificate pursuant to Section 6.6(b) setting forth a Total Leverage Ratio of 10.00:1.00 or lower.
“Specified Rig” means each Rig listed on Schedule 1.1-S.
“SPV” means any Person (excluding Transaction Parties) that is designated by the Borrower as a SPV, provided that the Borrower shall not designate as a SPV any Subsidiary 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 Consolidated Group’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 Consolidated Group and excluding any loss or gain resulting from the early extinguishment of Indebtedness) during the most recently completed fiscal year of Holdings, 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 Consolidated Group, all as determined on a consolidated basis in accordance with GAAP during such fiscal year of Holdings. 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. As of the Effective Date, the following entities are designated SPVs: (i) Transocean Conqueror Limited, (ii) Triton Conqueror GmbH, (iii) Transocean Conqueror Opco, Inc., (iv)
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Transocean Proteus Limited, (v) Triton Capital I GmbH, (vi) Transocean Proteus Opco, Inc., (vii) Transocean Phoenix 2 Limited, (viii) Triton Capital II GmbH, and (ix) Transocean Phoenix 2 Opco, Inc.
“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.
“Sterling” or “£” means the lawful currency of the United Kingdom.
“Sub-Agent” means an Affiliate or a correspondent bank of the Administrative Agent or the Collateral Agent designated by it to perform any duties or responsibilities of the Administrative Agent or the Collateral Agent under this Agreement and the other Credit Documents.
“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, managers, or comparable governing board or body of such other Person (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 any such Person or by one or more of its Subsidiaries. Unless otherwise specified, any reference in this Agreement to a “Subsidiary” shall refer to a Subsidiary of Holdings.
“Subsidiary Guarantor” means each Guarantor other than Holdings; provided that Holdco 4, Holdco 5 and Holdco 6 shall not be “Subsidiary Guarantors” for purposes of Sections 6.12 and 6.15 (and the component definitions as used therein).
“Subsidiary Guaranty Agreement” means that certain Subsidiary Guaranty Agreement executed by the Subsidiary Guarantors, as amended, restated, amended and restated, supplemented or otherwise modified from time to time (including by any Guaranty Supplements thereto), guaranteeing the Guaranteed Obligations.
“Supported QFC” has the meaning assigned to such term in Section 10.26.
“Swap Contract” means (i) any and all Interest Rate Protection Agreements, Currency Rate Protection Agreements, rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such
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transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.
“Swiss Franc” means the currency of the Swiss Confederation.
“Swiss Group Company” means any Subsidiary of Holdings organized in Switzerland.
“Swiss Stamp Tax” means a tax imposed under the Swiss Stamp Tax Act.
“Swiss Stamp Tax Act” means the Swiss Federal Act on Stamp Taxes of June 27, 1973 (Bundesgesetz über die Stempelabgaben) together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.
“Swiss FTA Ruling” means the tax ruling dated May 19, 2011 obtained on May 24, 2011 on behalf of the Borrower and Holdings from the Swiss Federal Tax Administration with respect to the tax treatment under Swiss law of certain debt issued by the Borrower and guaranteed by Holdings, as the same may be in effect from time to time.
“Swiss Withholding Tax” means taxes imposed under the Swiss Withholding Tax Act.
“Swiss Withholding Tax Act” means the Swiss Federal Act on the Withholding Tax of October 13, 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“TODDI” means Transocean Offshore Deepwater Drilling Inc., 0 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxx 00000.
“Total Assets” means, as of any date of determination, the aggregate book value of the assets of the Consolidated Group determined on a consolidated basis in accordance with GAAP as of such date.
“Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Consolidated Indebtedness on such date to (b) Consolidated EBITDA for the most recently ended four full consecutive fiscal quarters ended on or immediately prior to 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.
“Trade Date” has the meaning ascribed to such term in Section 10.10(a).
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“Transaction Party” means each Loan Party and each other Member of the Consolidated Group that grants (or purports to grant) Collateral to secure the Obligations pursuant to the terms hereof.
“Type”, when used in reference to any Revolving Loan or Borrowing, refers to whether the rate of interest on such Revolving Loan, or on the Revolving Loans comprising such Borrowing, is determined by reference to Adjusted LIBOR or the Alternate Base Rate.
“Unfunded Vested Liabilities” means, for any Plan or Foreign Plan at any time, the amount (if any) by which the present value of all vested nonforfeitable accrued benefits under such Plan or Foreign Plan (determined on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Plan or Foreign Plan) exceeds the fair market value of all assets of such Plan or Foreign Plan allocable to such benefits, determined as of the then most recent valuation date for such Plan or Foreign Plan, but only to the extent that such excess represents a potential liability of the Borrower or any other Member of the Consolidated Group to the PBGC or such Plan or Foreign Plan.
“Use of Proceeds Certificate” means, with respect to any Borrowing, a certificate in form, substance, and detail reasonably satisfactory to the Administrative Agent, signed by a responsible officer of the Borrower (a) describing the intended use of proceeds of such Borrowing and (b) certifying that the proceeds of the applicable Borrowing will be used for such described use or for other permitted general corporate purposes within five (5) Business Days after the occurrence of such Borrowing, or will otherwise be repaid to the extent required pursuant to Section 2.10(b).
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regime” has the meaning assigned to such term in Section 10.26.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.3(g).
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Wholly-Owned Subsidiary” means any Subsidiary of any Person of which all of the outstanding Equity Interests (other than any directors’ qualifying shares or other shares required under applicable law), on a fully-diluted basis, are owned by such Person and/or one or more of its Wholly-Owned Subsidiaries.
“Withholding Agent” means any Loan Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
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have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including intellectual property, cash, securities, accounts and contract rights, (f) with respect to the determination of any period of time, the word “from” means “from and including” and the word “to” means “to but excluding” and (g) reference to any law, rule or regulation means such as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time.
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thereby exceed the lesser of Revolving Credit Commitments Amount then in effect and the CNTA Threshold, immediately after giving effect to such Loan and the use of proceeds thereof; 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 Loans shall be made ratably from the Lenders in proportion to their respective Applicable Percentages. Loans of each Lender may be repaid, in whole or in part, and all or any portion of the principal amounts thereof reborrowed, before the Commitment Termination Date applicable to such Lender, subject to the terms and conditions hereof. Funding of Loans for any Borrowing shall be in U.S. Dollars.
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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
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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 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).
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then the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss, cost or expense. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) with respect to a Eurocurrency Loan, the amount of interest which would have accrued on the principal amount of such Eurocurrency Loan had such event not occurred, at the LIBO Rate that would have been applicable to such Eurocurrency Loan (excluding, for the avoidance of doubt, the Applicable Margin for such Eurocurrency Loan), for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Eurocurrency Loan) over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable amount and period from other banks in the London or European interbank market. 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
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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.
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provided, however, the foregoing shall not be construed to excuse any 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.
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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 such Issuing Bank may make a drawing under such “back-to-back” letter of credit 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.
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the aggregate Commitments of the Declining Lenders. Each Extending Lender may offer to increase its respective Commitment by an aggregate amount up to the aggregate amount of the Declining Lenders’ Commitments and such Extending Lender shall deliver to the Administrative Agent a notice of its offer to so increase its Commitment no later than 15 days prior to such anniversary date (and such offer shall be irrevocable until such anniversary date). To the extent the aggregate amount of extended Commitments is less than the aggregate amount of Commitments so requested to be extended pursuant to the foregoing, the Borrower shall have the right to require any Declining Lender to (and any such Declining Lender shall) assign in full its rights and obligations under this Agreement to one or more Eligible Assignees (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 (a “Replacement Lender”) become a party to this Agreement; provided that (i) such assignment is otherwise in compliance with Section 10.10(a), (ii) such Declining Lender receives payment in full of the unpaid principal amount of all Revolving Loans and Reimbursement Obligations owing to such Declining Lender, together with all accrued and unpaid interest thereon and all fees accrued and unpaid under this Agreement to the date of such payment of principal and all other amounts due to such Declining Lender under this Agreement and (iii) any such assignment shall be effective on the date on or before such anniversary date as may be specified by the Borrower and agreed to by the Replacement Lenders or the Extending Lenders, as the case may be, and the Administrative Agent. If, but only if, Extending Lenders and Replacement Lenders have agreed to provide Commitments in an aggregate amount greater than 50% of the aggregate amount of the Commitments outstanding immediately prior to such anniversary date, the Commitment Termination Date of such Extending Lenders and Replacement Lenders shall be extended by one year.
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On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.17(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Additional Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by facsimile or other electronic means, of the occurrence of the Commitment Increase to be effected on such Increase Date, shall record in the Register the relevant information with respect to each Increasing Lender and each Additional Lender on such date, and shall revise and distribute to the Lenders and the Borrower a new
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Schedule 1.1-C to reflect the Commitments and Applicable Percentages of all Lenders (including any Additional Lenders) after giving effect to such Commitment Increase. Upon the effectiveness of such Commitment Increase, the Commitments of each of the Lenders (including any Additional Lenders), the outstanding amount of all Revolving Loans, and the participations of such Lenders in all outstanding L/C Obligations shall be reallocated among such Lenders in accordance with such Commitments and Applicable Percentages.
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(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)executed copies of IRS Form W-8ECI;
(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 3.3-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4)to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.3-2 or Exhibit 3.3-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.3-4 on behalf of each such direct and indirect partner;
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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Each acceptance by the Borrower of the proceeds of any Borrowing 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 any initial Borrowing or any initial issuance, increase or extension of any Letters of Credit hereunder of purchases of participations therein) 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 such Borrowing, and no Issuing Bank shall 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.
The Borrower represents and warrants to each Lender, Issuing Bank, the Administrative Agent (a) as of the Effective Date and (b) as of each other date as may be expressly required by the terms of any Credit Document, as follows:
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obligation of the Borrower, Holdings, or such other Transaction Party, as the case may be, 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.
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The Transaction Parties, and all other material Members of the Consolidated Group maintain in effect, with responsible insurance companies, including captive insurance companies, or through self-insurance, (a) insurance against any loss or damage as to all insurable property and assets owned by it and as to its operations (other than business interruption insurance) and related liabilities, which insurance is of a character and in or in excess of such amounts as are customarily maintained by companies similarly situated and owning like property or assets or conducting like operations (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), and (b) such insurance as is required by Section 6.5 or any Mortgage.
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agents relating to the Anti-Corruption Laws or Sanctions is pending or, to the Borrower’s knowledge, threatened.
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The Borrower covenants and agrees that, so long as any Revolving Loan, Note, Commitment, or L/C Obligation (other than Letters of Credit as to which arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank shall have been made) is outstanding hereunder, or any other Obligation (other than contingent obligations or liabilities for which no claim or demand for payment has been made) is due and payable hereunder:
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The Administrative Agent will forward promptly to the Lenders the information provided to the Administrative Agent pursuant to clauses (i) through (iii) and clause (v) above.
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businesses described in Holdings’ quarterly report on Form 10-Q filed with the SEC for the quarter ended March 31, 2018, including without limitation, the oil and gas exploration and production business, or (iv) any related businesses (each a “Permitted Business”).
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provided, however, that if as a result of any change in applicable Swiss tax laws or regulations or any rulings or interpretations thereof, any uses of proceeds of Revolving Loans or Letters of Credit under this Agreement described in clauses (C), (D) or (E) above are of a type determined to be unpermitted flow-back of such proceeds or Letters of Credit, then in such event the Borrower shall not effect or permit any such use of such proceeds of Revolving Loans or Letters of Credit.
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provided that in the case of any transaction described in the preceding clauses (a) through (f), no Default or Event of Default (including, without limitation, pursuant to Section 7.1(j)) shall exist immediately prior to, or after giving effect to, such transaction.
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provided that, notwithstanding the foregoing, no Transaction Party shall create, incur, assume or suffer to exist any Lien of any kind on any Collateral, other than Permitted Collateral Liens and
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provided further that no Member of the Consolidated Group shall create, incur or assume any Lien of any kind on any asset or any obligation secured thereby, if, as a result of the creation, incurrence or assumption of such Lien or such obligation, the Revolving Obligations would exceed the CNTA Threshold immediately following such creation, incurrence or assumption.
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Agreement, provided that such amendments, extensions, replacements or other modifications, taken as a whole, are no less favorable in any material respect to the Consolidated Group than the transaction or transactions being amended, extended, replaced or modified.
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contributed to Holdco 7, Holdco 8 and Holdco 9 during such period, (iii) receipt of guarantee fees as Holdings, the Borrower or any other Member of the Consolidated Group in their reasonable discretion determines are required for tax purposes and (iv) actions that are reasonably related or incidental to the foregoing, or (b) own, lease, manage or otherwise operate any operating properties or assets.
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combined book value of all Rigs of the Consolidated Group with respect to the most recently completed fiscal year (the “85% Guaranty Requirement”).
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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 Holdings; and (c) if so directed by the Required Lenders, or may with the consent of 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) in cash 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 Banks 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 Banks, 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 Banks, but the failure to do so shall not impair or annul the effect of such notice.
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Notwithstanding the foregoing, (i) proceeds from the exercise of remedies under the Credit Documents with respect to Collateral shall not be applied to any obligations owing under Guaranteed Hedge Agreements or Guaranteed Cash Management Agreements, (ii) amounts received from any Transaction Party shall not be applied to any Excluded Swap Obligation of such Transaction Party and (iii) obligations arising under Guaranteed Cash Management Agreements and Guaranteed Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit Agreement that has given the notice
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contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.
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and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its Applicable Lending Office) of advancing, continuing, converting, or maintaining any Revolving Loan, or maintaining its obligation to make any such Revolving Loan, or issuing or maintaining a Letter of Credit or participating therein (or maintaining its obligation to issue, extend the expiration date of, increase the amount of or participate in any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its Applicable Lending Office) or the Administrative Agent in connection therewith under this Agreement or any other Credit Document, then, subject to Section 8.3(d), from time to time, within ten (10) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) or the Administrative Agent pursuant to Section 8.3(d) setting forth in reasonable detail such determination and the basis thereof, the Borrower shall be obligated to pay to such Lender, Issuing Bank or Administrative Agent such additional amount or amounts as will compensate such Lender, Issuing Bank or Administrative Agent for such increased costs or reductions suffered.
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of any Lender or Issuing Bank, as a result thereof, (g) 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 that has otherwise been approved by the Required Lenders, (h) any Lender is a Declining Lender or (i) any Issuing Bank gives notice pursuant to Section 2.12(a)(ii)(z) that the issuance of the Letter of Credit would violate any legal or regulatory restriction then applicable to such Issuing Bank, then and in any such event, upon request from the Borrower delivered to such Lender or Issuing Bank, and the Administrative Agent, such Lender or Issuing Bank shall assign, in accordance with the provisions of Section 10.10(a) 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 other than a Lender) 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, 3.3, 8.3 and 10.13. Notwithstanding the foregoing, a Lender or Issuing Bank shall not be required to make such assignment if (i) prior thereto, as a result of a waiver by such Lender or Issuing Bank or otherwise, the circumstances entitling the Borrower to request such assignment cease to apply, (ii) in the case of an assignment resulting from a Lender declining to consent as described in clause (g) of the preceding sentence, the applicable assignee shall not have consented to the applicable modification or waiver, (iii) in the case of an assignment resulting from a claim for payments or compensation by such Lender or Issuing Bank pursuant to Section 3.3 or 8.3, such assignment will not result in a reduction in such payments or compensation, or (iv) such assignment conflicts with applicable law.
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designation, specification, requirement or approval of, notice, request or other communication from, or other direction given (including a direction given to the Collateral Agent to act under the Credit Documents) or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases that the Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Credit Document unless it shall first receive such written instruction, advice or concurrence of the Administrative Agent, acting at the direction of the Required Lenders or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents. Notwithstanding anything else to the contrary herein, each of the Administrative Agent and the Collateral Agent, as applicable, may refrain from acting in accordance with any instructions or requests unless it shall first be indemnified to its satisfaction by the Lenders against any and all liability, cost and expense that may be incurred by it by reason of taking or continuing to take any such action in compliance with the instruction or request. The Administrative Agent shall in all cases be fully protected by the Lenders in taking any discretionary action, or in refraining from taking any discretionary action, under this Agreement and the other Credit Document in accordance with a request of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents), and such request and any discretionary action taken or failure to take discretionary action pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans. The Collateral Agent shall in all cases be fully protected by the Lenders in acting, or in refraining from acting, under this Agreement and the other Credit Document in accordance with a request of the Administrative Agent, acting at the direction of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent or the Collateral Agent and, in the event that the Administrative Agent or the Collateral Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent or the Collateral Agent, as applicable, any amount due for the
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reasonable compensation, expenses, disbursements and advances of the Administrative Agent or the Collateral Agent, as applicable, and its agents and counsel, and any other amounts due the Administrative Agent or the Collateral Agent hereunder.
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To the Borrower:Transocean Inc.
36c Xx. Xxx’x Drive
Xxxxxx Town, Grand Cayman KY-1003
Cayman Islands
Attention: C. Stephen McFadinColin Xxxxxxxx, President
Fax No.: (000) 000-0000000-0000
E-mail:Xxxxx.XxXxxxxXxxxx.Xxxxxxxx@xxxxxxxxx.xxx
with a copy to:Transocean Offshore Deepwater Drilling Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention:R. Xxxxxxxx Xxxxx, Vice President,
Investor Relations and Communications
Fax No.: (000) 000-0000
E-mail:Xxxx.Xxxxx@xxxxxxxxx.xxx
To Holdings:Transocean Ltd.
Xxxxxxxxxxx 00
Xxxxxxxxxxx 0000
Xxxxxxxxxxx
Attention:Xxxx Xxx, Executive Vice President,
Chief Financial Officer
Fax:00-00-000-0000
E-mail:Xxxx.Xxx@xxxxxxxxx.xxx
To the Administrative Agent:Citibank, N.A.
Citibank Delaware
0000 Xxxxx Xxxx
OPS III
Xxx Xxxxxx, XX 00000
Attention: Agency Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: XxXxxxxXxxxxxXxx@Xxxx.xxx
Attention: Xxxxxx Xxxxxxx
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Telephone: (000) 000-0000 (New York)
Telephone: (000) 000-0000 (Houston)
E-mail: xxxxxx.xxxxxxx@xxxx.xxx
To the Collateral AgentCitibank, N.A.
Agency & Trust
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
E-mail: xxxxx.xxxxx@xxxx.xxx / xxx.xxxx@xxxx.xxx
To the Issuing Banks:Citibank, N.A.
Citibank Delaware
0000 Xxxxx Xxxx
OPS III
Xxx Xxxxxx, XX 00000
Attention: Agency Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: XxXxxxxXxxxxxXxx@Xxxx.xxx
Xxxxx Fargo Bank, National Association
0000 Xxxxxxx Xx 0xx Xxxxx
Xxxxxx, Xxxxxxxx, 00000
Attention: Loan Servicing Specialist
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: XXXXXXXXxxxxxXxxxxxx@xxxxxxxxxx.xxx
DNB Bank ASA, New York Branch
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Go-Xxxxxxxxx / Xxxxxxxx Xxxxxx
Telephone: (000) 0000000; (000) 0000000
E-mail: xxx.xxxxxxxxxx@xxx.xx; xxxxxxxx@xxx.xx
Crédit Agricole Corporate and Investment Bank
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx.xxxxxxxx@xx-xxx.xxx
With a copy to:
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
E-mail: Xxxxxx.Xxxx@xx-xxx.xxx
and
E-mail: xxx.xxxxxxx@xx-xxx.xxx
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Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through Electronic Systems, to the extent provided in Section 10.7(b), shall be effective as provided in Section 10.7(b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided, that for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
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(d)Notwithstanding anything herein to the contrary, all written directions and instructions to the Collateral Agent (each of which shall be provided by email (with a .pdf attachment signed by an Authorized Representative) or similar format) given hereunder or under any other Credit Document by the Borrower, and instructions given by the Administrative Agent pursuant to this Agreement or any other Credit Document, shall be in English and executed by any officer or other representative who is legally authorized to act on behalf of, and to legally bind, the Borrower or the Administrative Agent (on behalf of the Lenders), as applicable (each such officer or other representative, an “Authorized Representative”) and shall be effective upon receipt by the Collateral Agent. No person shall be deemed to be an Authorized Representative of the Borrower or the Administrative Agent, as applicable, unless such person is named on a certificate of incumbency delivered to the Collateral Agent. The Borrower and the Administrative Agent shall deliver to the Collateral Agent a certificate, in form and substance satisfactory to the Collateral Agent, setting forth the names and specimen signatures of the Borrower’s and the Administrative Agent’s Authorized Representatives permitted to provide instructions to the Collateral Agent, and promptly provide any changes to such certificate from time to time thereafter. The Collateral Agent shall be entitled to rely conclusively on such certificate until it receives a certificate specifically stating that it is a superseding certificate.
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Administrative Agent and the other Lenders shall continue to deal solely with such Lender in connection with the rights and obligations of such Lender under this Agreement.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.10(b), from and after the effective date specified in each Assignment Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement, covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 8.3 and Section 10.13 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed in writing by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release
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of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.10(c).
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 10.11(i) or Section 10.11(ii) that directly and adversely affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, 3.3, and 8.3 (subject to the requirements and limitations therein, including the requirements under Section 3.3(g) (it being understood that the documentation required under Section 3.3(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.10(a); provided, that such Participant (A) agrees to be subject to the provisions of Section 8.4 and Section 8.6 as if it were an assignee under Section 10.10(a); and (B) shall not be entitled to receive any greater payment under Sections 3.3 or 8.3 with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 8.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.6 as though it were a Lender; provided, that such Participant also agrees to be subject to Section 10.6 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Revolving Loans and other Obligations under the Credit Documents (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of
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the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Revolving Loans, Letters of Credit or its other Obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Revolving Loan, Letter of Credit or other Obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations, proposed Section 1.163-5 of the United States Treasury Regulations, or any applicable temporary, final or other successor regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such participating Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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and/or the Collateral Agent (with the consent of the Required Lenders (subject to Section 2.14(b))), provided however, that:
and provided further, that (i) any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent and/or the Collateral Agent (acting at the direction of the Administrative Agent) to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment; (ii) this Agreement may be amended pursuant to Section 8.2 in accordance with the terms thereof; (iii) any Issuance Request or Application may be amended, supplemented or modified in a writing executed only by the Borrower and the applicable Issuing Bank; and (iv) any Borrowing Request, notice of continuation or conversion or notice of prepayment may be amended, supplemented or modified with the consent only of the Borrower and the Administrative Agent.
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7.4, notwithstanding anything to the contrary contained herein, any deposits to or payments from any accounts held by the Collateral Agent shall be only in U.S. Dollars.
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Lender pursuant to this Agreement shall give rise to any personal liability on the part of such officer or director.
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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ANNEX B TO EXHIBIT 10.1
EXHIBIT 6.6
COMPLIANCE CERTIFICATE
TRANSOCEAN INC., a Cayman Islands company (the “Borrower”), the banks and other financial institutions parties thereto (collectively, the “Lenders”), and CITIBANK, N.A., as Administrative Agent for the Lenders, executed and delivered that certain Credit Agreement dated as of June [ ], 2018 (as amended, supplemented and restated from time to time, the “Credit Agreement”). Any capitalized term defined in the Credit Agreement and used in this Compliance Certificate shall have the meaning given to it in the Credit Agreement.
The undersigned, solely in his/her capacity as chief financial officer or other financial officer (as noted below) of Holdings hereby certifies to the Lenders that:
| Section 15. | THE ATTACHED FINANCIAL STATEMENTS ARE (CHECK ONE) |
[ ] UNAUDITED QUARTERLY FINANCIAL STATEMENTS OR A COPY OF HOLDINGS’ FORM 10-Q AS FILED WITH THE SEC, OR
[ ] AUDITED ANNUAL FINANCIAL STATEMENTS OR A COPY OF HOLDINGS’ FORM 10-K AS FILED WITH THE SEC,
AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS ON A CONSOLIDATED BASIS THE FINANCIAL CONDITION OF THE CONSOLIDATED GROUP AS OF THE DATE INDICATED AND THE RESULTS OF THEIR OPERATIONS AND CHANGES IN THEIR CASH FLOWS FOR THE PERIODS INDICATED, AND HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP, SUBJECT TO NORMAL YEAR-END AUDIT ADJUSTMENTS FOR ANY SUCH FINANCIAL STATEMENTS THAT ARE QUARTERLY FINANCIAL STATEMENTS AND OTHER THAN THE OMISSION OF ANY FOOTNOTES AS PERMITTED AT SUCH TIME BY THE SEC.
| Section 16. | AS OF THE DATE OF THE ATTACHED FINANCIAL STATEMENTS AND WITH RESPECT TO HOLDINGS ON A CONSOLIDATED BASIS, ANNEX 1 (A) SETS FORTH THE CALCULATION OF THE SPECIFIED FINANCIAL COVENANTS PURSUANT TO SECTIONS 6.20 THROUGH 6.23, ANNEX 1 (B) SETS FORTH THE CALCULATION OF THE TOTAL LEVERAGE RATIO AND ANNEX 1 (C) SETS FORTH A LISTING OF THE AGGREGATE RIG VALUES FOR THE MARKETED RIGS DIRECTLY WHOLLY OWNED BY A LOAN PARTY (OTHER THAN HOLDINGS AND THE BORROWER). |
| (a) | Check either 1 or 2 |
[ ] 0.Xx of the date hereof, no Default or Event of Default has occurred and is continuing.
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[ ] 0.Xx of the date hereof, no Default or Event of Default has occurred and is continuing except the following matters: [Describe all such Defaults or Events of Default, specifying the nature, duration and status thereof and what action the Borrower, Holdings, or any other Member of the Consolidated Group has taken or proposes to take with respect thereto].
THIS CERTIFICATE MADE AND DELIVERED THIS DAY OF , 20 .
By:
Name:
Title:
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