EXECUTION COUNTERPART
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REVOLVING CREDIT AGREEMENT
DATED AS OF
DECEMBER 16, 2003
AMONG
TRANSOCEAN INC.,
THE LENDERS PARTIES HERETO,
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT,
CITIBANK, N.A.
AND
BANK OF AMERICA, N.A.,
AS CO-SYNDICATION AGENTS,
THE ROYAL BANK OF SCOTLAND PLC
AND
BANK ONE, NA,
AS CO-DOCUMENTATION AGENTS,
WELLS FARGO BANK, N. A.
AND
UBS LOAN FINANCE LLC,
AS MANAGING AGENTS,
THE BANK OF NEW YORK,
DEN NORSKE BANK ASA
AND
HSBC BANK USA,
AS CO-AGENTS
AND
CITIGROUP GLOBAL MARKETS INC.,
AND
SUNTRUST CAPITAL MARKETS, INC.,
AS CO-LEAD ARRANGERS
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REVOLVING CREDIT AGREEMENT
--------------------------
THIS REVOLVING
CREDIT AGREEMENT (the "Agreement"), dated as of December 16,
2003, among TRANSOCEAN INC. (the "Borrower"), a Cayman Islands
company, the
lenders from time to time parties hereto
(each a "Lender" and collectively, the
"Lenders"), SUNTRUST BANK, a Georgia banking corporation ("STB"), as
administrative agent for the Lenders (in such capacity, the
"Administrative
Agent"), CITIBANK, N.A. and BANK OF
AMERICA, N.A., as co-syndication agents for
the Lenders (in such capacity, the
"Co-Syndication Agents"), THE ROYAL BANK OF
SCOTLAND plc and BANK ONE, NA, as co-documentation
agents for the Lenders (in
such capacity, the "Co-Documentation Agents"), WELLS
FARGO BANK, N.A. and UBS
LOAN FINANCE LLC, as managing agents for the Lenders (in such
capacity, the
"Managing Agents"), THE BANK OF NEW YORK,
DEN NORSKE BANK ASA and HSBC BANK USA,
as co-agents for the Lenders (in such capacity, the
"Co-Agents"), and STB, as
issuing bank of the Letters of Credit hereunder
(STB and any other Lender that
issues a Letter of Credit hereunder, in such capacity, an "Issuing
Bank").
WITNESSETH:
WHEREAS, the
Borrower has requested that the Lenders establish in its favor
a revolving credit facility in the aggregate principal amount of U.S.
$800,000,000, pursuant to which facility revolving loans
would be made to, and
letters of credit would be issued for the account of, the Borrower;
WHEREAS,
the Borrower has further requested that a
portion of such loans
and letters of credit be made and issued in
certain currencies other than U.S.
dollars in an aggregate principal amount up to the U.S.
dollar equivalent of
$200,000,000;
WHEREAS,
the Lenders are willing to make such revolving
credit facility
available to the Borrower on the terms and subject to the conditions and
requirements hereinafter set forth;
NOW,
THEREFORE,
in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS;
INTERPRETATION.
Section
1.1. Definitions.
Unless otherwise defined herein, the
following terms shall have the following meanings, which meanings shall
be
equally applicable to both the singular and plural forms of such terms:
"Additional
Commitment Amount"
shall have the meaning set forth in Section
2.14.
"Additional
Lender" shall have the meaning set forth in Section 2.14.
"Adjusted
LIBOR" means, for any Borrowing of Eurocurrency
Loans for any
Interest Period, a rate per annum determined in
accordance with the following
formula:
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Adjusted
LIBOR =
LIBOR Rate
for such Interest Period
----------------------------------------
1.00 - Statutory Reserve Rate
"Adjusted
LIBOR Loan" means a
Eurocurrency Loan bearing interest at a rate
based on Adjusted LIBOR as provided in Section 2.6(b).
"Administrative
Agent" means SunTrust Bank, acting in its capacity as
administrative agent for the Lenders, and any successor
Administrative Agent
appointed hereunder pursuant to Section 9.7.
"Administrative
Questionnaire"
means, with respect to each Lender, an
administrative questionnaire in the form prepared by the
Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"Agreement"
means this Revolving Credit Agreement, as the same may be
amended, restated and supplemented from time to time.
"Applicable
Facility Fee Rate"
means, for any day, at such times as a debt
rating (either express or implied) by
S&P or Moody's (or in the event that both
cease the issuance of debt ratings
generally, such other ratings agency agreed
to by the Borrower and the
Administrative Agent) is in effect on the Borrower's
non-credit enhanced senior unsecured long-term debt, the
percentage per annum
set forth opposite such debt rating:
Debt
Rating
Percentage
------------
----------
A/A2
or above
0.075%
A-/A3
0.100%
BBB+/Baa1
0.125%
BBB/Baa2
0.150%
BBB-/Baa3
0.175%
BB+/Ba1
or below
0.225%
If the ratings issued by S&P and Moody's
differ (i) by one rating, the higher
rating shall apply to determine the Applicable
Facility Fee Rate, (ii) by two
ratings, the rating which falls between them shall apply to determine the
Applicable Facility Fee Rate, or (iii) by more than two ratings,
the rating
immediately above the lower of the two ratings shall apply to
determine the
Applicable Facility Fee Rate. The Borrower shall give written notice
to the
Administrative Agent of any changes to such ratings,
within three (3) Business
Days thereof, and any change to the Applicable Facility Fee Rate shall
be
effective on the date of the relevant
change.
Notwithstanding the foregoing, if
the Borrower shall at any time fail to have in effect such a debt
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rating on the Borrower's non-credit enhanced
senior unsecured long-term debt,
the Borrower shall seek and obtain (if not already in
effect), within thirty
(30) days after such debt rating first ceases to be in effect, a
corporate
credit rating or a bank loan rating from Moody's or S&P, or both,
and the
Applicable Facility Fee Rate shall thereafter be based on
such ratings in the
same manner as provided herein with respect to
the Borrower's senior unsecured
long-term debt rating (with the Applicable
Facility Fee Rate in effect prior to
the issuance of such corporate credit
rating or bank loan rating being the same
as the Applicable Facility Fee Rate in
effect at the time the senior unsecured
long-term debt rating ceases to be in effect).
"Applicable
Margin" means, for any day, at such times as a debt
rating
(either express or implied) by S&P or Moody's
(or in the event that both cease
the issuance of debt ratings generally, such
other ratings agency agreed to by
the Borrower and the Administrative Agent) is in effect on the Borrower's
non-credit enhanced senior unsecured long-term debt, the
percentage per annum
set forth opposite such debt rating:
Debt
Rating
Percentage
------------
----------
A/A2
or above
0.350%
A-/A3
0.400%
BBB+/Baa1
0.500%
BBB/Baa2
0.625%
BBB-/Baa3
0.800%
BB+/Ba1
or below
0.950%
If the ratings issued by S&P and Moody's
differ (i) by one rating, the higher
rating shall apply to determine the
Applicable Margin, (ii) by two ratings, the
rating which falls between them shall
apply to determine the Applicable Margin,
or (iii) by more than two ratings, the
rating immediately above the lower of the
two ratings shall apply to determine
the Applicable Margin.
The Borrower shall
give written notice to the
Administrative Agent of any changes to such ratings,
within three (3) Business Days thereof,
and any change to the Applicable Margin
shall be effective on the date of the relevant change.
Notwithstanding
the
foregoing, if the Borrower shall at any time
fail to have in effect such a debt
rating on the Borrower's non-credit enhanced
senior unsecured long-term debt,
the Borrower shall seek and obtain (if not already in
effect), within thirty
(30) days after such debt rating first ceases to be in effect, a
corporate
credit rating or a bank loan rating from Moody's or S&P, or both,
and the
Applicable Margin shall thereafter be based on such
ratings in the same manner
as provided herein with respect to the Borrower's senior
unsecured long-term
debt rating (with the Applicable Margin
in effect prior to the issuance of such
corporate credit rating or bank loan rating being the same as
the Applicable
Margin in effect at the time the senior
unsecured long-term debt rating ceases
to be in effect).
"Applicable
Utilization
Fee Rate" means, for any day, 0.125% per
annum.
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"Application"
means an application for a Letter of Credit as defined
in
Section 2.12(b).
"Assignment
Agreement"
means an agreement in substantially the form of
Exhibit 10.10 whereby a Lender conveys
part or all of its Commitment, Loans and
--------------
participations in Letters of Credit to another Person that is, or
thereupon
becomes, a Lender, or increases its Commitments, outstanding Loans and
outstanding participations in Letters of Credit, pursuant to Section
10.10.
"Australian
Dollars" means the lawful currency of Australia.
"Base - Rate"
means for any day the greater of:
(i) the fluctuating commercial loan rate announced by
the Administrative
Agent from time to time at its Atlanta,
Georgia office (or other corresponding
office, in the case of any successor
Administrative Agent) as its prime rate or
base rate for U.S. Dollar loans in the United States
of America in effect on
such day (which base rate may not be the
lowest rate charged by such Lender on
loans to any of its customers), with any
change in the Base Rate resulting from
a change in such announced rate to be effective on the date
of the relevant
change; and
(ii)
the sum of (x) the rate per annum
(rounded upwards, if necessary, to
the nearest 1/100th of 1%) equal to the weighted average of the rates
on
overnight federal funds transactions with
members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by the
Federal
Reserve Bank of New York on the next
Business Day, provided that (A) if such day
is not a Business Day, the rate on such transactions on the
immediately
preceding Business Day as so published on
the next Business Day shall apply, and
(B) if no such rate is published on such
next Business Day, the rate for such
day shall be the average of the offered
rates quoted to the Administrative Agent
by two (2) federal funds brokers of recognized
standing on such day for such
transactions as selected by the Administrative
Agent, plus (y) a percentage per
annum equal to one-half of one percent (1/2%) per annum.
"Base
Rate Loan" means a
Revolving Loan bearing interest prior to maturity
at the rate specified in Section 2.6(a).
"Borrower" means
Transocean Inc., a company organized under the laws of the
Cayman Islands, and its successors.
"Borrowing"
means any extension of credit of the same Type made by
the
Lenders on the same date by way of Revolving Loans having a
single Interest
Period or a Letter of Credit, including any Borrowing
advanced, continued or
converted. A Borrowing is "advanced" on the day the Lenders advance funds
comprising such Borrowing to the Borrower or a Letter of Credit is
issued,
increased or extended, is "continued" (in
the case of Eurocurrency Loans) on the
date a new Interest Period commences
for such Borrowing, and is "converted" (in
the case of Eurocurrency Loans) when
such Borrowing is changed from one Type of
Loan to the other, all as requested by the Borrower
pursuant to Section 2.3.
4
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"Borrowing
Multiple" means, for any Loan, (i) in the case of a
Borrowing
denominated in Dollars, $100,000, (ii) in
the case of a Borrowing denominated in
Euros, E100,000, (iii) in the case of a
Borrowing denominated in Pounds, 50,000,
(iv) in the case of a Borrowing
denominated in Kroner, 1,000,000 Kroner, (v) in
the case of a Borrowing denominated in Canadian Dollars, 150,000
Canadian
Dollars, (vi) in the case of a Borrowing denominated in
Australian Dollars,
150,000 Australian Dollars and (vii) in the case of a
Borrowing denominated in
Singapore Dollars, 200,000 Singapore Dollars.
"Borrowing
Request" has the meaning set forth in Section 2.3(a).
"Business Day"
means any day other than a Saturday or Sunday on which banks
are not authorized or required to close in Atlanta,
Georgia or New York, New
York and, if the applicable Business
Day relates to the advance or continuation
of, conversion into, or payment on a Eurocurrency
Borrowing (i) in a currency
other than Euros, on which banks are dealing in Dollar, Pound,
Australian
Dollar, Canadian Dollar, Singapore Dollar
or Kroner deposits, as applicable, in
the applicable interbank eurocurrency market in London, England, and
(ii) in
Euros, on which the TARGET payment system
is open for the settlement of payments
in Euros.
"Calculation
Date" means the last Business Day of each
calendar quarter.
"Canadian
Dollars" or "Cdn.$" means the lawful currency of Canada.
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"Capitalized
Lease Obligations" means, for any Person, the aggregate amount
of such Person's liabilities under all
leases of real or personal property (or
any interest therein) which is required to be
capitalized on the balance sheet
of such Person as determined in accordance with GAAP.
"Cash
Equivalents"
means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than twelve
(12) months
from the date of acquisition, (ii) time deposits
and certificates of deposits
maturing within one year from the date of acquisition thereof or
repurchase
agreements with financial institutions
whose short-term unsecured debt rating is
A or above as obtained from either S&P or
Moody's, (iii) commercial paper or
Eurocommercial paper with a rating of at least A-1 by S&P
or at least P-1 by
Moody's, with maturities of not more than twelve (12)
months from the date of
acquisition, (iv) repurchase obligations entered into with any
Lender, or any
other Person whose short-term senior
unsecured debt rating from S&P is at least
A-1 or from Moody's is at least P-1, which are secured by
a fully perfected
security interest in any obligation of the
type described in (i) above and has a
market value of the time such repurchase is
entered into of not less than 100%
of the repurchase obligation of such Lender
or such other Person thereunder, (v)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within twelve (12) months from the date of
acquisition thereof or providing for the resetting of the interest rate
applicable thereto not less often than
annually and, at the time of acquisition,
having one of the two highest ratings
obtainable from either S&P or Moody's, and
(vi) money market funds which have at least
$1,000,000,000 in assets and which
invest primarily in securities of the types
described in clauses (i) through (v)
above.
5
<PAGE>
"Code"
means the Internal Revenue Code of 1986, as amended.
"Co-Agents"
means, collectively,
The Bank of New York, Den norske Bank ASA
and HSBC Bank USA, in their capacities as co-agents
for the Lenders, and any
successor Co-Agents appointed pursuant to Section 9.7;
provided, however, that
no such Co-Agent shall have any duties, responsibilities, or obligations
hereunder in such capacity.
"Co-Documentation
Agents" means,
collectively, The Royal Bank of Scotland
plc and Bank One, NA, in their capacities as
co-documentation agents for the
Lenders, and any successor Co-Documentation
Agents appointed pursuant to Section
9.7; provided, however, that no such Co-Documentation Agent shall have
any
duties, responsibilities, or obligations hereunder in such capacity.
"Co-Syndication
Agents" means, collectively, Citibank, N.A. and Bank of
America, N.A., acting in their capacities as co-syndication agents for
the
Lenders, and any successor Co-Syndication
Agents appointed hereunder pursuant to
Section 9.7; provided, however, that no
such Co-Syndication Agent shall have any
duties, responsibilities, or obligations hereunder in such capacity.
"Co-Lead
Arrangers" means, collectively, SunTrust Capital Markets, Inc.
and
Citigroup Global Markets Inc., acting in their
capacities as co-lead arrangers
for the credit facility described in
this Agreement; provided, however, that no
such Co-Lead Arrangers shall have any duties,
responsibilities, or obligations
hereunder in any capacity.
"Collateral"
means all property and assets of the Borrower in
which the
Administrative Agent or the Collateral Agent is granted
a Lien for the benefit
of the Lenders under the terms of Section 7.4.
"Collateral
Account" means the cash collateral account for
outstanding
undrawn Letters of Credit defined in Section 7.4(b).
"Collateralized
Obligations"
has the meaning set
forth in Section 7.4(b).
"Collateral
Agent" means STB acting in its capacity as collateral agent for
the Lenders, and any successor
collateral agent appointed hereunder pursuant to
Section 9.7.
"Commitment"
means, relative to any Lender, such Lender's
obligations to
make Revolving Loans and participate in Letters
of Credit pursuant to Sections
2.1 and 2.12, initially in the amount and percentage set
forth opposite its
signature hereto or pursuant to Section 10.10, as such obligations may be
reduced or increased from time to time as expressly
provided pursuant to this
Agreement.
"Commitment
Termination Date"
means the earliest of (i) December 16, 2008,
(ii) the date on which the Commitments are
terminated in full or reduced to zero
pursuant to Section 2.13, and (iii) the occurrence of any Event of
Default
described in Section 7.1(f) or (g) with
6
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respect to the Borrower or the occurrence
and continuance of any other Event of
Default and either (x) the declaration of the Loans to be due and
payable
pursuant to Section 7.2, or (y) in the absence
of such declaration, the giving
of written notice by the Administrative Agent,
acting at the direction of the
Required Lenders, to the Borrower pursuant to
Section 7.2 that the Commitments
have been terminated.
"Compliance
Certificate"
means a certificate in the form of
Exhibit 6.6.
-----------
"Confidential
Information
Memorandum"
shall mean the Confidential
Information Memorandum of the Borrower dated November
2003, as the same may be
amended, restated and supplemented from time to time and distributed to
the
Lenders prior to the Effective Date.
"Consolidated
EBITDA" means, for any period, for the Borrower and its
Subsidiaries, the sum of (a) net income or net loss (before discontinued
operations and income or loss resulting from
extraordinary items), plus (b) the
sum of (i) Consolidated Interest Expense, (ii) income tax expense, (iii)
depreciation expense, (iv) amortization expense, (v) any loss (or minus any
gain) resulting from the early extinguishment of
Indebtedness and (vi) other
non-cash charges, all determined in
accordance with GAAP on a consolidated basis
for the Borrower and its Subsidiaries
(excluding, in the case of the foregoing
clauses (a) and (b), any net income or net
loss and expenses and charges of any
SPVs or other Persons that are not Subsidiaries), plus (c) dividends or
distributions received during such period by the Borrower
and its Subsidiaries
from SPVs and any other Persons that
are not Subsidiaries.
For purposes of the
foregoing, Consolidated EBITDA for the Borrower and its
Subsidiaries shall not
include any such amounts attributable to any Subsidiary or
business acquired
during such period by the Borrower or any
Subsidiary to the extent such amounts
relate to any period prior to the acquisition thereof.
"Consolidated
Indebtedness" means
all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated
balance sheet of such
Persons prepared in accordance with GAAP.
"Consolidated
Indebtedness
to Total Tangible
Capitalization Ratio" means,
at any time, the ratio of Consolidated Indebtedness at such time to
Total
Tangible Capitalization at such time.
"Consolidated
Interest Expense" means, for any period, total interest
expense of the Borrower and its Subsidiaries on a
consolidated basis for such
period, in connection with Indebtedness, all as determined on
a consolidated
basis in accordance with GAAP, but excluding
capitalized interest expense and
interest expense attributable to expected federal
income tax settlements. For
purposes of the foregoing, Consolidated Interest
Expense for the Borrower and
its Subsidiaries shall not include any such
interest expense attributable to any
Subsidiary or business acquired during such period by the Borrower or any
Subsidiary to the extent such interest expense
relates to any period prior to
the acquisition thereof.
"Consolidated
Net Assets" means, as of any date of determination, an amount
equal to the aggregate book value of the assets of the Borrower, its
Subsidiaries and, to the extent of the equity
interest of the Borrower and its
Subsidiaries therein, SPVs at such time, minus the current
liabilities of the
Borrower and its Subsidiaries, all as determined on a consolidated
basis in
7
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accordance with GAAP based on the most recent
quarterly or annual consolidated
financial statements of the Borrower
referred to in Section 5.9 or delivered (or
publicly filed) as provided in Section 6.6(a), as the case may be.
"Consolidated
Tangible Net Worth" means, as of any date
of determination,
consolidated shareholders equity of the
Borrower and its Subsidiaries determined
in accordance with GAAP but excluding the effect on shareholders equity
of
cumulative foreign exchange translation adjustments, and less the net book
----
amount of all assets of the Borrower and its Subsidiaries that would be
classified as intangible assets on the consolidated balance sheet of the
Borrower as of such date prepared in
accordance with GAAP.
For purposes of this
definition, SPVs shall be accounted for pursuant to the equity method of
accounting.
"Controlling
Affiliate"
means for the
Borrower, (i) any other Person that
directly or indirectly through one or more
intermediaries controls, or is under
common control with, the Borrower (other than Persons controlled by the
Borrower), and (ii) any other Person owning beneficially or
controlling ten
percent (10%) or more of the equity
interests in the Borrower. As used in this
definition, "control" means the power, directly or indirectly, to direct
or
cause the direction of management or
policies of a Person (through ownership of
voting securities or other equity interests, by contract or otherwise).
"Currency
Rate Protection Agreement" shall mean any foreign currency
exchange and future agreements, arrangements and options designed
to protect
against fluctuations in currency exchange rates.
"Credit
Documents"
means this Agreement,
the Notes, the Applications, the
Letters of Credit, and any Subsidiary Guaranties in
effect from time to time.
"Default"
means any event or
condition the occurrence of which would, with
the passage of time or the giving of notice, or both,
constitute an Event of
Default.
"Dollar" and
"U.S. Dollar" and the sign "$" mean lawful money of the United
States of America.
"Dollar
Equivalent" means, on any date of determination (i) with respect
to
any amount in Dollars, such amount, and (ii)
with respect to any amount in any
currency other than U.S. Dollars, the equivalent in Dollars of such
amount,
determined by the Administrative Agent using the
applicable Exchange Rate with
respect to such currency at the time in
effect pursuant to Section 10.19 or as
otherwise expressly provided herein.
"Effective
Date" means the date this Agreement shall
become effective as
defined in Section 10.16.
"EMU
Legislation" means the
legislative measures of the European Union for
the introduction of, changeover to or operation of the Euro in one or
more
member states.
8
<PAGE>
"Environmental
Claims" means any and all administrative, regulatory
or
judicial actions, suits, demands, demand letters, claims, liens, notices
of
non-compliance or violation, investigations or proceedings relating to any
Environmental Law ("Claims") or any permit issued
under any Environmental Law,
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement,
cleanup, removal, response, remedial or
other actions or damages pursuant to any
applicable Environmental Law, and (ii)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery,
compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or
threat of injury to the
environment.
"Environmental
Law" means any federal, state or local
statute, law, rule,
regulation, ordinance, code, policy or rule of common law now
or hereafter in
effect, including any judicial or administrative order, consent, decree or
judgment, relating to the environment.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro"
or "E" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation for the introduction of, changeover to
or operation of the Euro in
one or more member states.
"Eurocurrency",
when used in reference to any Loan or Borrowing, means such
Loan, or the Loans comprising such Borrowing, shall bear
interest at a rate
determined by reference to Adjusted LIBOR and the Applicable Margin.
"Eurocurrency
Loan" means a Revolving Loan bearing interest before maturity
at the rate specified in Section 2.6(b).
"Event
of Default" means any of the events or
circumstances specified in
Section 7.1.
"Exchange Rate"
means on any day, with respect to Euros, Pounds, Australian
Dollars, Canadian Dollars, Singapore Dollars, or Kroner, the offered
rate at
which such currency may be exchanged into
Dollars, as set forth at approximately
11:00 a.m. on such day on the Reuters NFX Page (or comparable
page on the
Telerate or Bloomberg Service) for such
currency. In the event
that such rate
does not appear on the applicable page of
any such services, the Exchange Rate
shall be determined by reference to such
other publicly available services for
displaying exchange rates as may be agreed
upon by the Administrative Agent and
the Borrower, or, in the absence of such agreement,
such Exchange Rate shall
instead be the offered spot rate of
exchange of the Administrative Agent or, if
the Administrative Agent shall so determine, one of
the Co-Syndication Agents,
in the market where its foreign
currency exchange operations in respect of such
currency are then being conducted, at or about
10:00 a.m., local time, on such
date for the purchase of Dollars for
delivery two Business Days later; provided
that if at the time of any such
determination, for any reason, no such spot rate
is being quoted, the Administrative Agent,
after consultation with the Borrower,
may use any reasonable method it deems
appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.
9
<PAGE>
"Existing
Facilities"
means the credit facilities of the Borrower
established pursuant to (i) that certain Credit
Agreement dated as of December
29, 2000 among the Borrower, SunTrust Bank, as
Administrative Agent, and the
lenders party thereto, (ii) that certain Credit
Agreement dated as of December
16, 1999 among the Borrower, SunTrust Bank, as
Administrative Agent, and the
lenders party thereto, and (iii) that
certain 364-Day Credit Agreement dated as
of December 26, 2002 among the Borrower,
SunTrust Bank, as Administrative Agent,
and the lenders party thereto, in each case
as amended and in effect immediately
prior to the Effective Date.
"Existing
Synthetic Leases" means the credit facilities of the
Borrower
established pursuant to (i) that certain synthetic lease pursuant
to, inter
alia, a participation agreement dated as of July 30,
1998 among the Borrower,
ABN Amro Bank N.V., as Administrative
Agent, and the lenders party thereto and
(ii) that certain synthetic lease pursuant to, inter alia, a
participation
agreement dated as of December 18, 2001 among the
Borrower, Bank of America,
N.A., as Administrative Agent, and the lenders party
thereto, in each case as
amended and in effect from time to time.
"Foreign
Currency Payment
Accounts" means those bank accounts specified on
Schedule 1.1 for receipt of payments, both
from the Lenders and the Borrower, in
------------
Euros, Pounds, Canadian Dollars, Australian Dollars, Singapore Dollars and
Kroner, as specified on Schedule 1.1, or such other bank accounts as may
-------------
hereafter be specified by the Administrative Agent in
writing to the Borrower
and the Lenders as being the applicable
bank accounts for receipt of payments in
such currencies.
"Foreign
Currency Sublimit" means $200,000,000.
"Foreign Plan"
means any pension, profit sharing, deferred compensation, or
other employee benefit plan, program or arrangement
maintained by any foreign
Subsidiary of the Borrower which, under
applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not
include any
benefit provided by a foreign government or its agencies.
"GAAP"
means generally
accepted accounting principles from time to time in
effect as set forth in the opinions and pronouncements of the
Accounting
Principles Board of the American Institute of
Certified Public Accountants and
the statements and pronouncements of the
Financial Accounting Standards Board or
in such other statements, opinions and
pronouncements by such other entity as
may be approved by a significant segment of the U.S.
accounting profession.
"Governmental
Authority"
means the government of the United States of
America, any other nation or any political
subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to
government.
10
<PAGE>
"Guarantor"
means any Subsidiary of the Borrower
required to execute and
deliver a Subsidiary Guaranty hereunder
pursuant to Section 6.11, in each case
unless and until the relevant Subsidiary Guaranty is released pursuant to
Section 6.11.
"Guaranty"
by any Person means all contractual obligations (other
than
endorsements in the ordinary course of business of
negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business) of such Person guaranteeing any
Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or
indirectly, including,
without limitation, all obligations
incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase
such Indebtedness or to purchase any
property or assets constituting security
therefor, primarily for the purpose of
assuring the owner of such Indebtedness of
the ability of the primary obligor to
make payment of such Indebtedness; or (ii) to
advance or supply funds (x) for
the purchase or payment of such
Indebtedness, or (y) to maintain working capital
or other balance sheet condition, or otherwise to advance or make
available
funds for the purchase or payment of such
Indebtedness, in each case primarily
for the purpose of assuring the owner of
such Indebtedness of the ability of the
primary obligor to make payment of such Indebtedness; or (iii) to lease
property, or to purchase securities or other property or services, of the
primary obligor, primarily for the purpose of assuring the owner of such
Indebtedness of the ability of the primary obligor to make payment of
such
Indebtedness; or (iv) otherwise to assure the
owner of such Indebtedness of the
primary obligor against loss in respect thereof. For the purpose of all
computations made under this Agreement, the amount
of a Guaranty in respect of
any Indebtedness shall be deemed to be equal to the
amount that would apply if
such Indebtedness was the direct obligation of such Person rather than the
primary obligor or, if less, the maximum aggregate
potential liability of such
Person under the terms of the Guaranty.
"Hazardous
Material" shall have the meaning assigned to that
term in the
Comprehensive Environmental Response
Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and
Reauthorization Acts of 1986, and shall
also include petroleum, including crude oil or any fraction thereof, or
any
other substance defined as "hazardous"
or "toxic" or words with similar meaning
and effect under any Environmental Law
applicable to the Borrower or any of its
Subsidiaries.
"Highest
Lawful Rate" means the
maximum nonusurious interest rate, if any,
that any time or from time to time may be contracted for,
taken, reserved,
charged or received on any Loans, under laws
applicable to any of the Lenders
which are presently in effect or, to the
extent allowed by applicable law, under
such laws which may hereafter be in effect and which allow a
higher maximum
nonusurious interest rate than applicable laws
now allow.
Determination of the
rate of interest for the purpose of
determining whether any Loans are usurious
under all applicable laws shall be made by amortizing,
prorating, allocating,
and spreading, in equal parts during the period
of the full stated term of the
Loans, all interest at any time contracted for, taken,
reserved, charged or
received from the Borrower in connection with the Loans.
"Indebtedness"
means, for any Person, the following obligations
of such
Person, without duplication: (i) obligations of such Person for
borrowed money;
(ii) obligations of such Person representing the deferred purchase
price of
property or services other than accounts payable and
11
<PAGE>
accrued liabilities arising in the ordinary course of business
and other than
amounts which are being contested in good faith and for which reserves
in
conformity with GAAP have been provided; (iii) obligations of such Person
evidenced by bonds, notes, bankers acceptances, debentures or other
similar
instruments of such Person, or obligations of such Person arising,
whether
absolute or contingent, out of letters of credit issued for such
Person's
account or pursuant to such Person's application securing
Indebtedness; (iv)
obligations of other Persons, whether or not assumed,
secured by Liens (other
than Permitted Liens) upon property or
payable out of the proceeds or production
from property now or hereafter owned or
acquired by such Person, but only to the
extent of such property's fair market value;
(v) Capitalized Lease Obligations
of such Person; (vi) obligations under
Interest Rate Protection Agreements and
Currency Rate Protection Agreements, and (vii) obligations of such Person
pursuant to a Guaranty of any of the foregoing
obligations of another Person;
provided, however, Indebtedness shall exclude Non-recourse Debt and any
Indebtedness attributable to the mark-to-market
treatment of obligations of the
type described in clause (vi) in the definition
of Indebtedness and any actual
fair value adjustment arising from any
Interest Rate Protection Agreements and
Currency Rate Protection Agreements that have been cancelled or otherwise
terminated before their scheduled expiration, in each case in respect of
Interest Rate Protection Agreements and Currency Rate Protection
Agreements
entered into in the ordinary course of business and not for investment
or
speculative purposes. For purposes of this Agreement, the
Indebtedness of any
Person shall include the Indebtedness of
any partnership or joint venture to the
extent such Indebtedness is recourse to such Person.
"Initial
Availability
Date" means the date on which the conditions
specified in Section 4.1 are satisfied (or waived in
accordance with Section
10.11).
"Interest
Coverage Ratio" means, as of the end of any
fiscal quarter, the
ratio of (i) Consolidated EBITDA for the
four fiscal quarter period then ended,
to (ii) Consolidated Interest Expense for the four
fiscal quarter period then
ended.
"Interest
Payment Date" means (a) with respect to
any Base Rate Loan, the
last day of each March, June, September and
December and (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a
Eurocurrency
Borrowing with an Interest Period of more
than three months' duration, each day
prior to the last day of such Interest
Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest
Period" means with respect to any Eurocurrency
Borrowing, the
period commencing on the date of such Borrowing and
ending on the numerically
corresponding day in the calendar month that is one,
two, three or six months
thereafter (or if available from each Lender making a Loan as part of
such
Borrowing, any other period), in each case as the Borrower may elect.
For
purposes hereof, the date of a Borrowing initially
shall be the date on which
such Borrowing is made and, in the case
of a Borrowing, thereafter shall be the
effective date of the most recent conversion
or continuation of such Borrowing.
12
<PAGE>
"Interest
Rate Protection Agreement" shall mean any interest rate
swap,
interest rate cap, interest rate collar, or other interest rate hedging
agreement or arrangement designed to protect against
fluctuations in interest
rates.
"Issuing
Bank" is defined in the preamble.
"Joinder
Agreement" means an agreement in substantially the form of
Exhibit
-------
2.14C signed by the Borrower, by each
Additional Lender and by each other Lender
-----
whose Commitment is to be increased, setting forth
the new Commitments of such
Lenders and setting forth the agreement of each
Additional Lender to become a
party to this Agreement and to be bound
by all the terms and provisions hereof.
"Kroner"
means lawful money of the Kingdom of Norway.
"L/C
Documents"
means the Letters of Credit, any Issuance Requests
and
Applications with respect thereto, any draft or other document presented
in
connection with a drawing thereunder, and this Agreement.
"L/C
Obligations" means the undrawn face amounts of all outstanding
Letters
of Credit and all unpaid Reimbursement Obligations.
"Lender"
is defined in the preamble.
"Lending Office"
means the "Lending Office" of such Lender (or an Affiliate
of such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other
office of such Lender (or
an Affiliate of such Lender) as such Lender
may from time to time specify to the
Administrative Agent and the Borrower as the office by
which its Loans of such
Type are to be made and maintained.
"Letter
of Credit" means any of the letters
of credit to be issued by the
Issuing Bank for the account of the Borrower pursuant to Section
2.12(a).
"LIBOR
Rate" means, relative to any Interest
Period for each Eurocurrency
Borrowing in any applicable currency, the rate per annum quoted at or
about
11:00 a.m. (London, England time) two
Business Days before the commencement of
such Interest Period on that page of the Reuters, Telerate or
Bloombergs
reporting service (as then being used by
the Administrative Agent to obtain such
interest rate quotes) that displays British Bankers' Association interest
settlement rates for deposits in the applicable
currency of such Eurocurrency
Borrowing, or if such page or such service shall cease
to be available, such
other page or other service (as the case may
be) for the purpose of displaying
British Bankers' Association interest
settlement rates as reasonably determined
by the Administrative Agent after
consultation with the Borrower as to the use
of any such other service.
If for any reason any
such settlement interest rate
for such Interest Period is not available through any such interest rate
reporting service, then the "LIBOR Rate" with respect to such
Eurocurrency
Borrowing will be the rate at which the Administrative Agent or, if the
Administrative Agent shall so determine, one of the
Co-Syndication Agents, is
offered deposits for such applicable currency in the Dollar Equivalent of
$5,000,000 for a period
13
<PAGE>
approximately equal to such Interest Period in the London
interbank market at
10:00 a.m. two Business Days before the
commencement of such Interest Period.
"Lien"
means any interest in any property or asset in favor
of a Person
other than the owner of such property or
asset and securing an obligation owed
to, or a claim by, such Person, whether such
interest is based on the common
law, statute or contract, including, but not
limited to, the security interest
lien arising from a mortgage, encumbrance, pledge,
conditional sale, security
agreement or trust receipt, or a lease, consignment or
bailment for security
purposes.
"Loan" means (i) a Base Rate Loan or (ii)
a Eurocurrency Loan, as the case
may be, and "Loans" means two or more of any such Loans.
"Managing
Agents" means,
collectively, Wells Fargo Bank, N.A. and UBS Loan
Finance LLC, in their capacities as managing agents for
the Lenders, and any
successor Managing Agents appointed pursuant
to Section 9.7; provided, however,
that no such Managing Agent shall have any duties, responsibilities, or
obligations hereunder in such capacity.
"Mandatory Cost
Rate" means in relation to any relevant period and sum, the
rate determined in accordance with Exhibit 2.15 hereto.
"Material
Adverse Effect" means a material adverse effect on (i) the
business, assets, operations or condition of the
Borrower and its Subsidiaries
taken as a whole, or (ii) the Borrower's
ability to perform any of its payment
obligations under the Agreement or the Notes, or in
respect of the Letters of
Credit.
"Maturity
Date" means the earlier of (i) the
Commitment Termination Date,
and (ii) the date on which the Loans have become due
and payable pursuant to
Section 7.2 or 7.3.
"Moody's"
means Moody's
Investors Service, Inc., or any successor thereto.
"Non-recourse
Debt" means with respect to any Person (i)
obligations of
such Person against which the obligee has no
recourse to such Person except as
to certain named or described present or future assets or
interests of such
Person, and (ii) the obligations of SPVs to
the extent the obligee thereof has
no recourse to the Borrower or any of its
Subsidiaries, except as to certain
specified present or future assets or interests of SPVs.
"Note" means any
of the promissory notes of the Borrower defined in Section
2.8.
"Obligations"
means all obligations
of the Borrower to pay fees, costs and
expenses hereunder, to pay principal or interest on Loans and
Reimbursement
Obligations and to pay any other obligations
to the Administrative Agent or any
Lender or Issuing Bank arising under any Credit Document.
"Other
Agents" means, collectively, the Co-Agents, the
Co-Documentation
Agents, the Co-Syndication Agents and the Managing Agents.
14
<PAGE>
"PBGC"
means the Pension Benefit Guaranty Corporation or any
successor
thereto.
"Percentage"
means, for each Lender, the percentage of the
Commitments
represented by such Lender's Commitment;
provided, that, if the Commitments are
terminated, each Lender's Percentage shall be
calculated based on such Lender's
pro rata share of the total Loans and L/C
Obligations then outstanding or, if no
Loans or L/C Obligations are then outstanding, its Commitment in effect
immediately before such termination, subject to any
assignments by such Lender
of Obligations pursuant to Section 10.10.
"Performance
Guaranties" means all Guaranties of the Borrower or any of its
Subsidiaries delivered in connection with the construction
financing of drill
ships, offshore mobile drilling units or offshore
drilling rigs for which firm
drilling contracts have been obtained by the
Borrower, any of its Subsidiaries
or a SPV.
"Performance
Letters of Credit" means all letters of credit for the account
of the Borrower, any Subsidiary or a SPV
issued as support for Non-recourse Debt
or a Performance Guaranty.
"Permitted
Business" has the
meaning ascribed to such term in Section 6.8.
"Permitted
Liens" means the Liens permitted as
described in Section 6.10.
"Person"
means an individual, partnership,
corporation, limited liability
company, association, trust, unincorporated
organization or any other entity or
organization, including a government or any agency or political
subdivision
thereof.
"Plan"
means an employee
pension benefit plan covered by Title IV of ERISA
or subject to the minimum funding standards
under Section 412 of the Code that
is either (i) maintained by the Borrower or any of its
Subsidiaries, or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer
makes contributions and to which
the Borrower or any of its Subsidiaries is
then making or accruing an obligation
to make contributions or has within the preceding five
(5) plan years made or
had an obligation to make contributions.
"Pounds"
means the lawful currency of the United Kingdom.
"Reimbursement
Obligations"
has the meaning ascribed to such term in
Section 2.12(c).
"Required
Lenders" means, Lenders having Revolving Credit Exposures
and
unused Commitments representing more than
50% of the sum of the total Revolving
Credit Exposures and unused Commitments at
such time or, if the Commitments have
been terminated or expired, Lenders having
more than 50% of the sum of the total
Revolving Credit Exposures of all Lenders.
"Reset
Date" has the meaning assigned to such term in Section 10.19.
15
<PAGE>
"Revolving
Credit" means the credit facility for making Revolving Loans
and
issuing Letters of Credit described in Sections 2.1 and 2.12.
"Revolving
Credit Commitment Amount" means an amount equal to
$800,000,000,
as such amount may be increased or reduced from time
to time pursuant to the
terms of this Agreement.
"Revolving
Credit Exposure"
means, with respect to any Lender at any time,
the sum at such time, without duplication, of (i) such Lender's
applicable
Percentage of the Dollar Equivalent of the
principal amounts of the outstanding
Revolving Loans, and (ii) such Lender's applicable Percentage of
the Dollar
Equivalent of the aggregate outstanding L/C Obligations.
"Revolving
Loan" means each of
the revolving loans defined in Section 2.1.
"Revolving
Obligations"
means the sum of the Dollar Equivalent of the
principal amount of all Revolving Loans and L/C Obligations outstanding.
"Sale-Leaseback
Transaction" means any
arrangement whereby the Borrower or
a Subsidiary shall sell or transfer any property, real or
personal, used or
useful in its business, whether now owned
or hereafter acquired, and thereafter
rent or lease property that it intends to
use for substantially the same purpose
or purposes as the property sold or transferred.
"S&P"
means Standard & Poor's Ratings Group or any successor
thereto.
"SPV"
means any Person that is designated by the Borrower as a SPV,
provided that the Borrower shall not designate as a
SPV any Subsidiary (other
than TODCO) that owns, directly or indirectly, any other
Subsidiary that has
total assets (including assets of any
Subsidiaries of such other Subsidiary, but
excluding any assets that would be
eliminated in consolidation with the Borrower
and its Subsidiaries) which equates to at least five percent (5%) of the
Borrower's Total Assets, or that had net income (including net
income of any
Subsidiaries of such other Subsidiary, all before
discontinued operations and
income or loss resulting from extraordinary
items, but excluding revenues and
expenses that would be eliminated in consolidation with
the Borrower and its
Subsidiaries and excluding any loss or gain resulting from the early
extinguishment of Indebtedness) during the most
recently completed fiscal year
of the Borrower in excess of the greater of (i)
$1,000,000, and (ii) fifteen
percent (15%) of the net income (before
discontinued operations and income or
loss resulting from extraordinary items and
excluding any loss or gain resulting
from the early extinguishment of Indebtedness) for the Borrower and its
Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP
during such fiscal year of the Borrower. The Borrower may elect to treat
any
Subsidiary as a SPV (provided such Subsidiary
would otherwise qualify as such),
and may rescind any such prior election, by
giving written notice thereof to the
Administrative Agent specifying the name of such
Subsidiary or SPV, as the case
may be, and the effective date of such
election, which shall be a date within
sixty (60) days after the date such notice is
given. The election to
treat a
particular Person as a SPV may only be made once.
"Singapore
Dollars" means the lawful currency of Singapore.
16
<PAGE>
"Significant
Subsidiary"
has the meaning ascribed to it under
Regulation
S-X promulgated under the Securities Exchange Act of 1934, as amended.
"Statutory
Reserve Rate" means, with respect to any currency, the
aggregate
of the maximum reserve, liquid asset or similar percentages (including
any
marginal, special, emergency or supplemental reserves)
expressed as a decimal
established by any Governmental Authority of the United States or of the
jurisdiction of such currency or any jurisdiction in which Loans in such
currency are made to which banks in such jurisdiction are subject for
any
category of deposits or liabilities customarily used to fund loans in such
currency or by reference to which interest rates applicable
to loans in such
currency are determined. Such reserve, liquid asset or similar percentages
shall include those imposed pursuant to
Regulation D of the Board of Governors
of the Federal Reserve System. Eurocurrency Loans shall be deemed
to be subject
to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to
any Lender
under Regulation D or any other applicable law, rule or regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary"
means, for any Person, any other Person (other than, except in
the context of Section 6.6(a), a SPV)
of which more than fifty percent (50%) of
the outstanding stock or comparable equity interests having ordinary
voting
power for the election of the board of directors of such corporation,
any
managers of such limited liability company or similar governing body
(irrespective of whether or not at the time stock
or other equity interests of
any other class or classes of such corporation or
other entity shall have or
might have voting power by reason of the happening
of any contingency), is at
the time directly or indirectly owned by
such former Person or by one or more of
its Subsidiaries.
"Subsidiary
Debt Basket Amount" has the meaning ascribed
to such term in
Section 6.11(i).
"Subsidiary
Guaranty" means any Guaranty of any Subsidiary delivered
pursuant to Section 6.11(k).
"TARGET"
means the Trans-European Automated Real-Time Gross Settlement
Express Transfer system.
"Taxes"
has the meaning set forth in Section 5.12.
"TODCO"
means the Subsidiary
of the Borrower that holds, together with any
Subsidiaries of such Subsidiary, all or
substantially all of the assets of the
shallow and inland water business segment of
the Borrower and its Subsidiaries
(including the jackup rig and drilling barge operations in the
U.S. Gulf of
Mexico and the drilling operations in Trinidad, Mexico and Venezuela).
17
<PAGE>
"Total
Assets" means, as of any date of
determination, the aggregate book
value of the assets of the Borrower and its Subsidiaries determined on
a
consolidated basis in accordance with GAAP as of such date.
"Total Tangible
Capitalization" means, as of any date of determination, the
sum of Consolidated Indebtedness plus
Consolidated Tangible Net Worth as of such
date.
"Type",
when used in reference
to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is
determined by reference to Adjusted LIBOR or the Base Rate.
"Unfunded
Vested Liabilities" means, for any Plan
at any time, the amount
(if any) by which the present value of all vested nonforfeitable
accrued
benefits under such Plan exceeds the fair market value of all Plan
assets
allocable to such benefits, determined as
of the then most recent valuation date
for such Plan, but only to the extent that such
excess represents a potential
liability of the Borrower or any of its
Subsidiaries to the PBGC or such Plan.
Section
1.2. Time
of Day. Unless otherwise expressly provided,
all
-------------
references to time of day in this Agreement
and the other Credit Documents shall
be references to New York, New York time.
Section
1.3. Accounting
Terms; GAAP. Except as otherwise expressly
------------------------
provided herein, and subject to the
provisions of Section 10.20, all terms of an
accounting or financial nature shall be
construed in accordance with GAAP, as in
effect from time to time.
ARTICLE 2. THE CREDIT FACILITIES.
Section 2.1.
Commitments for Revolving Loans. Subject to the terms and
-------------------------------
conditions hereof, each Lender severally and not
jointly agrees to make one or
more loans (each a"Revolving Loan") to the
Borrower from time to time prior to
the Commitment Termination Date on a
revolving basis in an aggregate amount not
to exceed at any time outstanding an
amount equal to its Commitment, subject to
any reductions thereof pursuant to the
terms of this Agreement;provided,however,
that no Lender shall be required to make any Revolving
Loan if, after giving
effect thereto, (i) the Dollar Equivalent of the
aggregate principal amount of
the Revolving Loans and the L/C Obligations of all Lenders (determined in
accordance with Section 10.19) would thereby exceed the Revolving Credit
Commitment Amount then in effect; or (ii)
the Dollar Equivalent of the Revolving
Credit Exposure of such Lender (determined in accordance
with Section 10.19)
would thereby exceed its Commitment then in
effect. Each Borrowing
of Revolving
Loans shall be made ratably from the Lenders
in proportion to their respective
Percentages. Revolving Loans may be repaid, in
whole or in part, and all or any
portion of the principal amount thereof reborrowed, before the Commitment
Termination Date, subject to the terms and conditions
hereof. Funding of
any
Revolving Loans shall be in any combination of Dollars, Euros, Pounds,
Australian Dollars, Canadian Dollars, Singapore
Dollars or Kroner as specified
by the Borrower as set forth in
Section 2.3;provided,that the Dollar Equivalent
amount of the principal amount of outstanding Revolving Loans and L/C
Obligations funded and issued in Euros, Pounds, Australian
Dollars, Canadian
Dollars, Singapore Dollars
18
<PAGE>
and Kroner determined, with respect to each such Revolving Loans and L/C
Obligations in accordance with Section
10.19 shall at no time exceed the Foreign
Currency Sublimit then in effect.
Section
2.2. Types
of Revolving Loans and Minimum Borrowing
----------------------------------------------------
Amounts. Borrowings of Revolving
Loans may be outstanding as either Base
Rate
-------
Loans or Adjusted LIBOR Loans, as selected
by the Borrower pursuant to Section
2.3;provided, however, that any Revolving Loans funded in Euros,
Australian
Dollars, Canadian Dollars, Singapore Dollars, Pounds or Kroner may only be
outstanding as Adjusted LIBOR Loans.
Each Borrowing of Base
Rate Loans shall be
in an amount of not less than $1,000,000 and
each Borrowing of Adjusted LIBOR
Loans shall be in an amount of not less
than the Dollar Equivalent of $5,000,000
and in an integral multiple of the Borrowing Multiple.
Section
2.3. Manner
of Borrowings; Continuations and Conversions
of
---------------------------------------------------------
Borrowings.
----------
(a)
Notice of Revolving
Loan Borrowings. The
Borrower shall give
------------------------------------
notice to the Administrative Agent by no later than 12:00 p.m. (i) at
least
three (3) Business Days before the date on which the Borrower
requests the
Lenders to advance a Borrowing of
Eurocurrency Loans to be funded in Dollars and
at least four (4) Business Days before the
date on which the Borrower requests
the Lenders to advance a Borrowing of
Eurocurrency Loans to be funded in Euros,
Pounds, Australian Dollars, Canadian
Dollars, Singapore
Dollars or Kroner, and
(ii) on the date the Borrower requests the Lenders
to advance a Borrowing of
Base Rate Loans, in each case pursuant to a duly executed
Borrowing Request
substantially in the form of Exhibit 2.3 (each a "Borrowing Request").
------------
(b)
Notice of Continuation or Conversion of Outstanding
---------------------------------------------------------
Borrowings. The Borrower may from time to time
elect to change or continue the
----------
type of interest rate borne by each
Revolving Loan Borrowing or, subject to the
minimum amount requirements in Section 2.2 for
each outstanding Revolving Loan
Borrowing, a portion thereof, as follows: (i) if such Borrowing is of
Eurocurrency Loans, the Borrower may continue part or
all of such Borrowing as
Eurocurrency Loans for an Interest Period specified
by the Borrower or convert
part or all of such Borrowing into Base Rate Loans on the last day of
the
Interest Period applicable thereto, or the
Borrower may earlier convert part or
all of such Borrowing into Base Rate
Loans so long as it pays the breakage fees
and funding losses provided in Section 2.11; and (ii)
if such Borrowing is of
Base Rate Loans, the Borrower may convert all or part
of such Borrowing into
Eurocurrency Loans for an Interest Period specified by the Borrower on
any
Business Day, in each case pursuant to
notices of continuation or conversion as
set forth below. The Borrower may select multiple Interest Periods
for the
Eurocurrency Loans constituting any such
particular Borrowing, provided that at
no time shall the number of different Interest Periods for outstanding
Eurocurrency Loans exceed twenty (20) (it being understood for such
purposes
that (x) Interest Periods of the same duration, but commencing
on different
dates, shall be counted as different Interest Periods, and
(y) all Interest
Periods commencing on the same date and of
the same duration shall be counted as
one Interest Period regardless of the number of
Borrowings or Loans involved.
Notices of the continuation of such Eurocurrency Loans for an additional
Interest Period or of the conversion of part or
all of such Eurocurrency Loans
into Base Rate Loans or of such Base
Rate Loans into Eurocurrency Loans must be
given by no later than 12:00 p.m. at least
19
<PAGE>
three (3) Business Days with respect to
Eurocurrency Loans funded in Dollars and
four (4) Business Days with respect to Eurocurrency Loans funded in
Euros,
Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars or Kroner,
before the date of the requested continuation or conversion.
(c)
Manner of Notice. The Borrower shall give such notices
------------------
concerning the advance, continuation, or
conversion of a Borrowing pursuant to
this Section 2.3 by telephone or facsimile (which
notice shall be irrevocable
once given and, if by telephone, shall be promptly confirmed in writing)
pursuant to a Borrowing Request which shall
specify the date of the requested
advance, continuation or conversion (which
shall be a Business Day), the amount
and currency of the requested Borrowing, whether such Borrowing is to be
advanced, continued, or converted, the type of Loans to comprise such new,
continued or converted Borrowing and, if such Borrowing
is to be comprised of
Eurocurrency Loans, the Interest Period
applicable thereto.
The Borrower agrees
that the Administrative Agent may rely on any such telephonic or
facsimile
notice given by any Person it in good faith believes is an authorized
representative of the Borrower without the necessity of independent
investigation and that, if any such notice by telephone conflicts with
any
written confirmation, such telephonic
notice shall govern if the Administrative
Agent has acted in reliance thereon.
(d)
Notice to the Lenders. The Administrative Agent shall
give
------------------------
prompt telephonic, telex or facsimile notice to each Lender of any notice
received pursuant to this Section 2.3 relating to a
Revolving Loan Borrowing.
The Administrative Agent shall give notice to the Borrower
and each Lender by
like means of the interest rate applicable to each
Borrowing of Eurocurrency
Loans (but, if such notice is given by
telephone, the Administrative Agent shall
confirm such rate in writing) promptly after
the Administrative Agent has made
such determination.
(e)
Borrower's Failure
to Notify.
If the Borrower fails
to give
------------------------------
notice pursuant to Section 2.3(a) of (i) the
continuation or conversion of any
outstanding principal amount of a Borrowing of Eurocurrency Loans,
or (ii) a
Borrowing of Revolving Loans to pay outstanding
Reimbursement Obligations, and
has not notified the Administrative Agent by 12:00 p.m. at least three
(3)
Business Days before the last day of the Interest
Period for any Borrowing of
Eurocurrency Loans funded in Dollars or at least four
(4) Business Days before
the last day of the Interest Period for any Borrowing
of Eurocurrency Loans
funded in Euros, Pounds, Australian
Dollars, Canadian Dollars, Singapore Dollars
or Kroner, or by the day such
Reimbursement Obligation becomes due, as the case
may be, that it intends to repay such
Borrowing or Reimbursement Obligation, the
Borrower shall be deemed to have requested,
as applicable, (x) the continuation
of such Borrowing as a Eurocurrency Loan with an Interest
Period of one (1)
month or (y) the advance of a new Borrowing of Base Rate Loans (after
converting, if necessary, the Reimbursement Obligation into
Dollars using the
Exchange Rate in effect on such date) on such day in the amount of the
Reimbursement Obligation then due, which Borrowing pursuant
to this clause (y)
shall be deemed to have been funded on such date
by the Lenders in accordance
with Section 2.3(a) and to have been applied on such day to pay the
Reimbursement Obligation then due, in each case so long as
no Event of Default
shall have occurred and be continuing or would occur as a result of such
Borrowing but otherwise disregarding the
conditions to Borrowings set forth in
Section 4.2. Upon the occurrence and
20
<PAGE>
during the continuance of any Event of
Default, and upon notice thereof from the
Administrative Agent to the Borrower (i) each Eurocurrency Loan will
automatically, on the last day of the then existing
Interest Period therefor,
convert into a Base Rate Loan, and (ii) the
obligation of the Lenders to fund
Loans in Euros, Pounds, Australian
Dollars, Canadian Dollars, Singapore Dollars
or Kroner, and to make, continue or
convert Loans into Eurocurrency Loans shall
be suspended.
(f)
Conversion. If
the Borrower shall elect to convert any
----------
particular Borrowing pursuant to this Section
2.3 from one Type of
Loan to the
other only in part, then, from and after
the date on which such conversion shall
be effective, such particular Borrowing shall, for all purposes of this
Agreement (including, without limitation,
for purposes of subsequent application
of this sentence) be deemed to instead constitute two Borrowings (each
originally advanced on the same date as such particular Borrowing), one
comprised of (subject to subsequent conversion in accordance with this
Agreement) Eurocurrency Loans in an aggregate principal amount equal
to the
portion of such Borrowing so elected by the Borrower to be comprised of
Eurocurrency Loans and the second comprised
of (subject to subsequent conversion
in accordance with this Agreement) Base Rate Loans in an
aggregate principal
amount equal to the portion of such particular Borrowing so
elected by the
Borrower to be comprised of Base Rate Loans. If the Borrower shall elect to
have multiple Interest Periods apply to
any such particular Borrowing comprised
of Eurocurrency Loans, then, from and after the date such multiple
Interest
Periods commence, such particular Borrowing shall, for all purposes of
this
Agreement (including, without limitation,
for purposes of subsequent application
of this sentence), be deemed to constitute
a number of separate Borrowings (each
originally commencing on the same date as such particular
Borrowing) equal to
the number of, and corresponding to, the
different Interest Periods so selected,
each such deemed separate Borrowing corresponding to a particular selected
Interest Period comprised of (subject to subsequent conversion
in accordance
with this Agreement) Eurocurrency Loans in
an aggregate principal amount equal
to the portion of such particular
Borrowing so elected by the Borrower to have
such Interest Period. This Section 2.3(f) shall be
applied appropriately in the
event that the Borrower shall make the
elections described in the two preceding
sentences at the same time with respect to the same particular
Borrowing.
Section 2.4.
Interest Periods. As
provided in Section 2.3, at the time
----------------
of each request for a Borrowing of
Eurocurrency Loans, or for the continuation
or conversion of any Borrowing of
Eurocurrency Loans, the Borrower shall select
the Interest Period(s) to be applicable to such
Loans from among the available
options, subject to the limitations in Section 2.3;provided, however,
that:
(i) the Borrower may not select an Interest Period that extends
beyond
the Commitment Termination Date;
(ii) whenever the last day of any Interest Period would otherwise
be a
day that is not a Business Day, the
last day of such Interest Period shall
either
be (i) extended to the
next succeeding Business Day, or (ii) in the
case
of Eurocurrency Loans only, reduced to the immediately preceding
Business
Day if the next succeeding Business Day
is in the next calendar
month;
and
21
<PAGE>
(iii) for purposes of
determining an Interest Period, a month means a
period
starting on one day in a calendar month and ending on the
numerically
corresponding
day in the next calendar month; provided,
however,
that if there is no such numerically corresponding
day in the
month in which
an Interest Period is to end or if an Interest Period begins
on the last Business Day of a calendar month, then in the case of
Eurocurrency
Loans only, such Interest Period shall end on the last
Business Day of
the calendar month in which such Interest Period is to end.
Section
2.5. Funding
of Loans.
------------------
(a)
Disbursement of Loans.
Not later than 12:00 p.m. with respect
---------------------
to Borrowings in Dollars of Eurocurrency Loans, and
2:00 p.m. with respect to
Base Rate Revolving Loans, on the date of any requested advance of a new
Borrowing of Loans, each Lender, subject to all
other provisions hereof, shall
make available its Loan comprising its portion of such Borrowing in funds
immediately available in Atlanta, Georgia for
the benefit of the Administrative
Agent and according to the payment
instructions of the Administrative Agent. Not
later than 2:00 p.m. (local time at the bank where the applicable
Foreign
Currency Payment Account is maintained) with respect to a new Borrowing in
Euros, Pounds, Australian Dollars, Canadian Dollars, Singapore Dollars, or
Kroner, on the date of any such requested
Borrowing, each Lender, subject to all
other provisions hereof, shall make available its
portion of such Borrowing in
funds immediately available in the applicable
Foreign Currency Payment Account
for the benefit of the Administrative Agent and according to the payment
instructions of the Administrative Agent.
The
Administrative Agent shall make
the proceeds of each such Borrowing
available in immediately available funds to
the Borrower (or as directed in writing by the
Borrower) on such date. In the
event that any Lender does not make such
amounts available to the Administrative
Agent by the time prescribed above, but
such amount is received later that day,
such amount may be credited to the Borrower in the manner
described in the
preceding sentence on the next Business Day (with interest
on such amount to
begin accruing hereunder on such next
Business Day) provided that acceptance by
the Borrower of any such late amount shall not be deemed a waiver by the
Borrower of any rights it may have against such Lender.
No Lender shall be
responsible to the Borrower for any failure by another Lender to fund its
portion of a Borrowing, and no such
failure by a Lender shall relieve any other
Lender from its obligation, if any, to fund its portion of a Borrowing.
(b)
Administrative Agent
Reliance on Lender
Funding. Unless
the
-------------------------------------------------
Administrative Agent shall have been
notified by a Lender prior to 12:00 noon at
least 2 Business Days prior to the date on which such
Lender is scheduled to
make payment to the Administrative Agent of
the proceeds of a Loan (which notice
shall be effective upon receipt) that such
Lender does not intend to make such
payment, the Administrative Agent may assume that such Lender has made
such
payment when due and in reliance upon such assumption may
(but shall not be
required to) make available to the Borrower
the proceeds of the Loan to be made
by such Lender and, if any Lender has not in fact made such
payment to the
Administrative Agent, such Lender shall, on demand, pay to
the Administrative
Agent the amount made available to the Borrower attributable to
such Lender
together with interest thereon for each day
during the period commencing on the
date such amount was made available to the Borrower and ending on (but
excluding) the date
22
<PAGE>
such Lender pays such amount to the Administrative Agent
at a rate per annum
equal to the Administrative Agent's cost of funds for such amount.
If such
amount is not received from such Lender
by the Administrative Agent immediately
upon demand, the Borrower will, on demand,
repay to the Administrative Agent the
proceeds of the Loan attributable to such
Lender with interest thereon at a rate
per annum equal to the interest rate applicable to
the relevant Loan, but the
Borrower will in no event be liable to pay
any amounts otherwise due pursuant to
Section 2.11 in respect of such repayment.
Nothing in this
subsection shall be
deemed to relieve any Lender from any
obligation to fund any Loans hereunder or
to prejudice any rights which the Borrower may have against any
Lender as a
result of any default by such Lender hereunder.
Section
2.6. Applicable
Interest Rates.
---------------------------
(a)
Base Rate Loans. Each Base Rate Loan shall bear interest
-----------------
(computed on the basis of a 365-day year or 366-day
year, as the case may be,
and actual days elapsed excluding the date
of repayment) on the unpaid principal
amount thereof from the date such Loan is made until maturity (whether
by
acceleration or otherwise) or conversion to a
Eurocurrency Loan, at a rate per
annum equal to the lesser of (i) the
Highest Lawful Rate, or (ii) the Base Rate
from time to time in effect. The Borrower agrees to pay such
interest on each
Interest Payment Date for such Loan and at
maturity (whether by acceleration or
otherwise).
(b)
Eurocurrency Loans.
Each Eurocurrency Loan shall bear
-------------------
interest (computed on the basis of a 360-day year and actual days
elapsed,
except with respect to Eurocurrency Loans funded in Pounds, in which case
interest will be computed on the basis of a
365-day year or 366-day year, as the
case may be, and actual days elapsed, in each case excluding the date
of
repayment) on the unpaid principal amount thereof from the
date such Loan is
made until maturity (whether by acceleration or
otherwise) or, in the case of
Eurocurrency Loans, conversion to a Base Rate
Loan at a rate per annum equal to
the lesser of (i) the Highest Lawful Rate, or (ii)
the sum of Adjusted LIBOR
plus the Applicable Margin. The Borrower agrees to pay such
interest on each
Interest Payment Date for such Loan and at
maturity (whether by acceleration or
otherwise) or, in the case of Eurocurrency Loans, conversion
to a Base Rate
Loan.
(c)
Rate Determinations.
The Administrative Agent shall determine
-------------------
each interest rate applicable to the Loans and Reimbursement Obligations
hereunder insofar as such interest rate involves a
determination of Base Rate,
Adjusted LIBOR or LIBOR Rate, or any
applicable default rate pursuant to Section
2.7, and such determination shall be
conclusive and binding except in the case
of the Administrative Agent's manifest error or willful misconduct. The
Administrative Agent shall promptly give notice
to the Borrower and each Lender
of each determination of Adjusted LIBOR,
with respect to each Eurocurrency Loan.
Section
2.7. Default Rate.
If any payment of
principal on any Loan is
------------
not made when due after the expiration
of the grace period therefor provided in
Section 7.1(a) (whether by acceleration or otherwise), or any
Reimbursement
Obligation is not paid when due as provided in Section
2.12(c), such Loan or
Reimbursement Obligation shall bear
interest (computed on the basis of a year of
360, 365 or 366 days, as applicable, and actual
days elapsed) after any such
23
<PAGE>
grace period expires until such principal then due is
paid in full, which the
Borrower agrees to pay on demand, at a rate per annum equal to:
(a)
for any Base Rate Loan, the lesser of (i)
the Highest Lawful
Rate, or (ii) the sum of two percent (2%)
per annum plus the Base Rate from time
to time in effect (but not less than the Base
Rate in effect at the time such
payment was due);
(b)
for any Eurocurrency Loan, the lesser of (i) the Highest
Lawful Rate, or (ii) the sum of two percent (2%) per annum
plus the rate of
interest in effect thereon at the time of such default until the
end of the
Interest Period for such Loan and,
thereafter, at a rate per annum equal to the
sum of two percent (2%) per annum plus (x) in the case of
any Loans made in
Dollars, the Base Rate from time to time in
effect (but not less than the Base
Rate in effect at the time such payment was due), or (y)
in the case of any
Loans made in Euros, Pounds, Australian Dollars,
Canadian Dollars, Singapore
Dollars or Kroners, the interest rate that would
otherwise then be applicable
under this Agreement to a Eurocurrency Loan made in such currency for an
Interest Period of one month as from time to time
in effect (but not less than
such interest rate in effect at the time such payment was due); and
(c)
for any unpaid Reimbursement Obligations, the
lesser of (i)
the Highest Lawful Rate, or (ii) the
sum of two percent (2%) per annum plus (x)
in the case of any Reimbursement
Obligations payable in Dollars, the Base Rate
from time to time in effect (but not less than
the Base Rate in effect at the
time such payment was due), or (y) in
the case of any Reimbursement Obligations
payable in any currency other than Dollars, the interest rate that would
otherwise then be applicable under this
Agreement to a Eurocurrency Loan made in
such currency for an Interest Period of one
month as from time to time in effect
(but not less than such interest rate in effect at
the time such payment was
due).
It is the intention of the
Administrative Agent and the Lenders to conform
strictly to usury laws applicable to them. Accordingly, if the
transactions
contemplated hereby or any Loan or other
Obligation would be usurious as to any
of the Lenders under laws applicable to it (including
the laws of the United
States of America and the State of New York
or any other jurisdiction whose laws
may be mandatorily applicable to such Lender notwithstanding the other
provisions of this Agreement, the Notes or
any other Credit Document), then, in
that event, notwithstanding anything to the contrary in this Agreement,
the
Notes or any other Credit Document, it
is agreed as follows:
(i) the aggregate
of all consideration which constitutes interest under
laws applicable to such
Lender that is contracted for, taken, reserved, charged or
received by such
Lender under this Agreement, the Notes or
any other Credit Document or otherwise
shall under no circumstances exceed the Highest Lawful Rate, and any
excess
shall be credited by such Lender on the
principal amount of the Loans or to the
Reimbursement Obligations (or, if the principal amount of the Loans and
all
Reimbursement Obligations shall have been paid
in full, refunded by such Lender
to the Borrower); and (ii) in the event that the maturity of the
Loans is
accelerated by reason of an election of the
holder or holders thereof resulting
from any Event of Default hereunder or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under laws applicable to such Lender may
never include more than the
Highest Lawful Rate, and excess interest, if any, provided for in this
Agreement, the Notes, any other Credit Document or otherwise shall be
24
<PAGE>
automatically canceled by such Lender as of the date of such
acceleration or
prepayment and, if theretofore paid, shall be credited by such
Lender on the
principal amount of the Loans or to the Reimbursement
Obligations (or if the
principal amount of the Loans and all
Reimbursement Obligations shall have been
paid in full, refunded by such Lender
to the Borrower). To
the extent that the
Texas Finance Code, Chapters 302 and 303, are relevant to the
Administrative
Agent and the Lenders for the purpose of
determining the Highest Lawful Rate,
the Administrative Agent and the Lenders hereby elect to determine the
applicable rate ceiling under such Chapter by the indicated (weekly) rate
ceiling from time to time in effect, subject to their right
subsequently to
change such method in accordance with applicable law.
In the event the
Loans
and all Reimbursement Obligations are
paid in full by the Borrower prior to the
full stated term of the Loans and the interest
received from the actual period
of the existence of the Loans exceeds the
Highest Lawful Rate, the Lenders shall
refund to the Borrower the amount of the excess
or shall credit the amount of
the excess against amounts owing under
the Loans and none of the Administrative
Agent or the Lenders shall be subject to any of
the penalties provided by law
for contracting for, taking, reserving,
charging or receiving interest in excess
of the Highest Lawful Rate. The Texas Finance Code, Chapter 346, which
regulates certain revolving credit loan accounts and revolving tri-party
accounts, shall not apply to this Agreement or the Loans.
Section
2.8. Repayment
of Loans; Evidence of Debt.
-----------------------------------------
(a)
Repayment of
Loans. The Borrower hereby promises to pay
to
--------------------
the Administrative Agent for the account of each Lender, on the
Commitment
Termination Date, the unpaid amount of each Revolving Loan then
outstanding.
(b)
Record of Loans by Lenders. Each Lender shall maintain in
------------------------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each
Loan made by
such Lender, including the amounts of
principal and accrued interest payable and
paid to such Lender from time to time hereunder.
(c)
Record of Loans by Administrative Agent.
The Administrative
-----------------------------------------
Agent shall maintain accounts in which it shall record
(i) the amount of each
Loan made hereunder, the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal
or accrued interest due and payable or
to become due and payable from the Borrower
to each Lender hereunder and (iii)
the amount of any sum received by the Administrative
Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d)
Evidence of
Obligations.
The entries made in the accounts
-------------------------
maintained pursuant to paragraph (b) or (c)
of this Section shall be prima facie
----- -----
evidence of the existence and amounts of the obligations recorded
therein;
provided that the failure of any Lender or
the Administrative Agent to maintain
--------
such accounts or any error therein shall
not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e)
Notes. The
Revolving Loans outstanding to the Borrower
from
-----
each Lender shall, at the written request of such Lender, be
evidenced by a
promissory note of the Borrower payable to such
Lender in the form of Exhibit
-------
2.8A (Master Note) or, if such Lender so requests in
writing, by one or more
----
individual promissory notes of the Borrower in similar form but
25
<PAGE>
payable in the specific foreign currencies in which the Loans may
be funded
(each a "Note"). The Borrower agrees to execute and deliver to the
Administrative Agent, for the benefit of each Lender requesting one or
more
promissory notes as aforesaid, an original of each such promissory note,
appropriately completed, to evidence the respective Loans made
by such Lender
hereunder, within ten (10) Business Days after the
Borrower receives a written
request therefor.
(f)
Recording of
Loans and Payments on Notes.
Each holder of a
-------------------------------------------
Note shall record on its books and records or
on a schedule to its appropriate
Note (and prior to any transfer of its Notes shall endorse thereon or
on
schedules forming a part thereof appropriate
notations to evidence) the amount
of each Loan outstanding from it to
the Borrower, all payments of principal and
interest and the principal balance from time to
time outstanding thereon, the
type of such Loan and, if a Eurocurrency
Loan the Interest Period and interest
rate applicable thereto. Such record, whether shown on the
books and records of
a holder of a Note or on a schedule to its
Note, shall be prima facie evidence
as to all such matters; provided, however, that
the failure of any holder to
record any of the foregoing or any error in
any such record shall not limit or
otherwise affect the obligation of the Borrower to
repay all Loans outstanding
to it hereunder together with accrued
interest thereon. At
the request of any
holder of a Note and upon such holder
tendering to the Borrower the Note to be
replaced, the Borrower shall furnish a new Note to such
holder to replace any
outstanding Note and at such time the first
notation appearing on the schedule
on the reverse side of, or attached to, such new Note shall set forth
the
aggregate unpaid principal amount of all Loans, if any, then outstanding
thereon.
Section
2.9. Optional
Prepayments.
The Borrower shall have the
---------------------
privilege of prepaying any Base Rate Loans without premium or
penalty at any
time in whole or at any time and from time to time
in part (but, if in part,
then in an amount which is equal to or greater than
$1,000,000);provided,
however, that the Borrower shall have given notice of such
prepayment to the
Administrative Agent no later than 12:00 p.m. on the date
of such prepayment.
The Borrower shall have the privilege
of prepaying any Adjusted LIBOR Loans (a)
without premium or penalty in whole or in part (but, if in part,
then in an
amount which is equal to or greater than
the Dollar Equivalent of $5,000,000 and
in an integral multiple of the Borrowing Multipleor such smaller
amount as
needed to prepaya particular Borrowingin
full) only on the last Business Day of
an Interest Period for such Loan, and (b) at
any other time without premium or
penalty except for the breakage fees and
funding losses that are required to be
paid pursuant to Section 2.11;provided, however,
that the Borrower shall have
given notice of such prepayment to the
Administrative Agent no later than 12:00
p.m. at least three (3) Business Days before the last Business Day
of such
Interest Period or the proposed prepayment
date. Any such
prepayments shall be
made by the payment of the principal amount
to be prepaid and accrued and unpaid
interest thereon to the date of such
prepayment. Unless
otherwise specified in
writing by the Borrower, optional prepayments shall be
applied first, to the
Revolving Loans, second, to the Reimbursement Obligations with respect to
Letters of Credit, and third to any other Obligations then outstanding.
Section 2.10.
Mandatory Prepayments of Loans. In the event and on each
------------------------------
occasion that the Dollar Equivalent of the aggregate principal amount of
outstanding Revolving Loans and L/C Obligations exceeds the
Revolving Credit
Commitment Amount then in effect, then the
26
<PAGE>
Borrower shall promptly prepay Revolving
Loans in an aggregate amount sufficient
to eliminate such excess. Immediately upon determining the need to make
any
such prepayment, the Borrower shall notify the Administrative Agent of
such
required prepayment and of the identity of
the particular Revolving Loans being
prepaid. If the Administrative Agent shall notify the Borrower that the
Administrative Agent has determined that any prepayment
is required under this
Section 2.10, the Borrower shall make such
prepayment no later than the second
Business Day following such notice.
Any mandatory
prepayment of Revolving Loans
pursuant hereto shall not be limited by the
notice provision for prepayments set
forth in Section 2.9. Each such prepayment shall be
accompanied by a payment of
all accrued and unpaid interest on the
Loans prepaid and any applicable breakage
fees and funding losses pursuant to Section 2.11.
Section
2.11. Breakage
Fees. If any Lender incurs any loss, cost
or
--------------
expense (excluding loss of anticipated profits and other indirect or
consequential damages) by reason of the
liquidation or re-employment of deposits
or other funds acquired by such Lender to
fund or maintain any Eurocurrency Loan
as a result of any of the following
events other than any such occurrence as a
result of a change of circumstance described in Sections 8.1 or 8.2:
(a)
any payment,
prepayment
or conversion of any
such Loan on a
date other than the last day of its Interest
Period (whether by acceleration,
mandatory prepayment or otherwise);
(b)
any failure
to make a principal payment of any
such Loan on
the due date therefor; or
(c)
any failure by the
Borrower to borrow, continue or prepay, or
convert to, any such Loan on the date specified in
a notice given pursuant to
Section 2.3 (other than by reason of a default of such Lender),
then the Borrower shall pay to such Lender such
amount as will reimburse such
Lender for such loss, cost or expense. If any Lender makes such a claim
for
compensation, it shall provide to the Borrower a certificate
executed by an
officer of such Lender setting forth the
amount of such loss, cost or expense in
reasonable detail (including an explanation
of the basis for and the computation
of such loss, cost or expense) no later than
ninety (90) days after the event
giving rise to the claim for compensation, and the amounts shown on such
certificate shall be prima facie evidence of
such Lender's entitlement thereto.
Within ten (10) days of receipt of such certificate, the
Borrower shall pay
directly to such Lender such amount as will compensate such
Lender for such
loss, cost or expense as provided herein, unless such Lender has
failed to
timely give notice to the Borrower of such claim for
compensation as provided
herein, in which event the Borrower shall not have
any obligation to pay such
claim.
Section
2.12. Letters
of Credit
-------------------
(a)
Letters of
Credit. Subject to the terms and conditions
-------------------
hereof, the Issuing Bank agrees to issue, from time to time prior to the
Commitment Termination Date, at the request
of the Borrower and on behalf of the
Lenders and in reliance on their obligations under this
Section 2.12, one or
more letters of credit (each a "Letter of
Credit") for the Borrower's account in
a face amount in each case of at least
$500,000 and in an aggregate undrawn face
amount for all
27
<PAGE>
Letters of Credit at any time outstanding not to exceed
the Revolving Credit
Commitment Amount; provided, that the Issuing Bank shall not be
obligated to
issue a Letter of Credit pursuant to this Section
2.12 if, after the issuance
thereof, (i) the outstanding Revolving Loans
and L/C Obligations would thereby
exceed the Revolving Credit Commitment Amount (determined in
accordance with
Section 10.19) then in effect, or (ii) the issuance of
such Letter of Credit
would violate any legal or regulatory
restriction then applicable to the Issuing
Bank or any Lender as notified by the Issuing Bank or such Lender to
the
Administrative Agent before the date of issuance of such Letter of
Credit.
Letters of Credit and any increases and extensions thereof
hereunder may be
issued in face amounts of either Dollars, Euros, Pounds,
Australian Dollars,
Canadian Dollars, Singapore Dollars or
Kroner; provided further, that the Dollar
Equivalent amount of the principal amount of outstanding
Revolving Loans and
Letters of Credit in Euros, Pounds, Australian Dollars, Canadian Dollars,
Singapore Dollars and Kroner determined, with respect to each
such Revolving
Loan or Letter of Credit, in accordance with Section 10.19
on the date such
Revolving Loan is funded, continued or converted, or the
date such Letter of
Credit is issued, increased and extended,
as applicable, shall not exceed in the
aggregate the Foreign Currency Sublimit.
(b)
Issuance Procedure.
To request that the
Issuing Bank issue a
-------------------
Letter of Credit, the Borrower shall deliver to the Issuing Bank and the
Administrative Agent (with a duplicate copy to an operations
employee of the
Issuing Bank as designated by the Issuing Bank from time to time) a duly
executed Issuance Request substantially in the form of
Exhibit 2.12A (each an
-------------
"Issuance Request"), together with a duly
executed application for the relevant
Letter of Credit substantially in the form of Exhibit 2.12B (each an
--------------
"Application"), or such other computerized issuance or
application procedure,
instituted from time to time by the Issuing Bank and
the Administrative Agent
and agreed to by the Borrower, completed to
the reasonable satisfaction of the
Issuing Bank and the Administrative Agent, and such
other information as the
Issuing Bank and the Administrative Agent
may reasonably request. In the event
of any irreconcilable difference or
inconsistency between this Agreement and an
Application, the provisions of this Agreement shall
govern. Upon receipt
of a
properly completed and executed Application and any
other reasonably requested
information at least three (3) Business Days prior to any
requested issuance
date, the Issuing Bank will process such Application in
accordance with its
customary procedures and issue the requested Letter of
Credit on the requested
issuance date. The Borrower may cancel any requested issuance
of a Letter of
Credit prior to the issuance thereof. The Issuing Bank will notify the
Administrative Agent and each Lender of the amount, currency,
and expiration
date of each Letter of Credit it issues
promptly upon issuance thereof. Each
Letter of Credit shall have an expiration
date no later than four (4) Business
Days before the Commitment Termination Date. If the Issuing Bank issues any
Letters of Credit with expiration dates that
automatically extend unless the
Issuing Bank gives notice that the expiration date will not so
extend, the
Issuing Bank will give such notice of
non-renewal before the time necessary to
prevent such automatic extension if (and will not give such notice of
non-renewal before such time unless) before such required
notice date (i) the
expiration date of such Letter of Credit if
so extended would be later than four
(4) Business Days before the Commitment Termination
Date, (ii) the Commitment
Termination Date shall have occurred, (iii) a Default or an
Event of Default
exists and the Required Lenders have
given the Issuing Bank instructions not to
so permit the expiration date of such Letter
of Credit to be extended, or (iv)
the Issuing Bank is so directed by the Borrower.
The Issuing Bank
agrees to
issue amendments
28
<PAGE>
to any Letter of Credit increasing its
amount, or extending its expiration date,
at the request of the Borrower, subject to the
conditions precedent for all
Borrowings of Section 4.2 and the other terms and conditions
of this Section
2.12.
(c)
The Borrower's
Reimbursement
Obligations.
-------------------------------------------
(i) The Borrower hereby irrevocably and unconditionally agrees to
reimburse
the Issuing Bank for each payment or disbursement
made by the
Issuing
Bank to settle its obligations under any draft drawn or other
payment made
under a Letter of Credit (a "Reimbursement Obligation") within
two (2) Business
Days from when such draft is paid or other payment is made
with
either funds not borrowed hereunder or
with a Borrowing of Revolving
Loans subject to Section 2.3 and the other terms
and conditions contained
in this Agreement. The Reimbursement
Obligation shall bear interest (which
the Borrower hereby promises to pay)
from and after the date such draft is
paid
or other payment is made until (but excluding the date) the
Reimbursement
Obligation
is paid at the lesser of (x) the
Highest Lawful
Rate,
or (y) the Base Rate (in the case of a
Letter of Credit payable in
Dollars) or the
rate of interest that would then be applicable hereunder to
an Adjusted
LIBOR Loan with an Interest Period of one month (in the case of
a Letter of Credit payable in Euros,
Pounds, Australian Dollars, Canadian
Dollars,
Singapore Dollars or Kroner), in each case so long as the
Reimbursement
Obligation
shall not be past due, and thereafter at the
default
rate per annum as set forth in Section
2.7(c), whether or not the
Commitment
Termination
Date shall have occurred. If any such payment
or
disbursement
is reimbursed to the
Issuing Bank on the date such payment or
disbursement
is made by the Issuing Bank, interest shall
be paid on the
reimbursable
amount for one (1) day. The Issuing Bank shall give the
Borrower
notice of any drawing on a Letter of Credit within one (1)
Business
Day after such drawing is paid.
(ii) The Borrower
agrees for the benefit of the Issuing Bank and each
Lender
that, notwithstanding any provision of any Application, the
obligations
of the Borrower under
this Section 2.12(c) and each applicable
Application
shall be absolute, unconditional and
irrevocable and shall be
performed
strictly in accordance
with the terms of this Agreement and each
applicable
Application
under all
circumstances whatsoever (other than the
defense
of payment in accordance with this
Agreement), including, without
limitation,
the following circumstances (subject in all cases to the
defense
of payment in accordance with this Agreement):
(1) any lack of validity or enforceability of any of the
L/C
Documents;
(2) any amendment or
waiver of or any consent to depart from all
or any of the provisions of any of the L/C Documents;
(3) the existence of any claim, set-off,
defense or other right
the Borrower may have at any time against a beneficiary of a Letter
of
Credit (or
any person for whom a beneficiary may be acting),
the
Issuing Bank,
any Lender or any other Person,
whether in connection
with this Agreement, another L/C Document or any unrelated
transaction;
29
<PAGE>
(4) any statement or
any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient
in
any respect or any statement therein being untrue or inaccurate in
any
respect;
(5) payment by the
Issuing Bank under a Letter of Credit against
presentation to
the Issuing Bank of a
draft or certificate that does
not comply
with the terms of the Letter of Credit; or
(6) any other act or
omission to act or delay of any kind by the
Issuing Bank,
any Lender or any other Person or any other
event or
circumstance
whatsoever that
might, but for the provisions of this
Section 2.12(c),
constitute
a legal or equitable discharge of the
Borrower's obligations
hereunder, under an
Issuance Request or under
an Application;
provided, however, the foregoing shall not be construed
to excuse the Issuing
Bank from liability to the Borrower to the extent of any
direct damages (but
excluding consequential damages, which are hereby waived to the extent not
prohibited by applicable law) suffered by the Borrower that
are caused by the
Issuing Bank's gross negligence or willful misconduct.
(d)
The Participating
Interests.
Each Lender severally and not
-----------------------------
jointly agrees to purchase from the Issuing Bank,
and the Issuing Bank hereby
agrees to sell to each Lender, an undivided
percentage participating interest,
to the extent of its Percentage, in each Letter of Credit issued by,
and
Reimbursement Obligation owed to, the Issuing Bank in
connection with a Letter
of Credit. Upon any failure by the Borrower
to pay any Reimbursement Obligation
in connection with a Letter of Credit at the
time required in Sections 2.12(c)
and 2.3(c), or if the Issuing Bank is required at any
time to return to the
Borrower or to a trustee, receiver, liquidator,
custodian or other Person any
portion of any payment by the Borrower of any Reimbursement Obligation
in
connection with a Letter of Credit, the
Issuing Bank shall promptly give notice
of same to each Lender, and the Issuing Bank shall
have the right to require
each Lender to fund its participation in such
Reimbursement Obligation. Each
Lender (except the Issuing Bank to the
extent it is also a Lender) shall pay to
the Issuing Bank an amount equal to such
Lender's Percentage of such unpaid or
recaptured Reimbursement Obligation not later
than the Business Day it receives
notice from the Issuing Bank to such effect,
if such notice is received before
2:00 p.m., or not later than the following Business Day if such
notice is
received after such time. If a Lender fails to pay timely
such amount to the
Issuing Bank, it shall also pay to the Issuing Bank interest
on such amount
accrued from the date payment of such
amount was made by the Issuing Bank to the
date of such payment by the Lender at a
rate per annum equal to the Base Rate in
effect for each such day and only after such payment shall such
Lender be
entitled to receive its Percentage of each payment received on the
relevant
Reimbursement Obligation and of interest paid
thereon. The several
obligations
of the Lenders to the Issuing Bank under
this Section 2.12(d) shall be absolute,
irrevocable and unconditional under any and all circumstances
whatsoever and
shall not be subject to any set-off, counterclaim or
defense to payment any
Lender may have or have had against the Borrower, the
Issuing Bank, and any
other Lender or any other Person whatsoever
including, but not limited to, any
defense based on the failure of the demand for payment under the
Letter of
Credit to conform to the terms of such Letter of Credit or the
legality,
validity, regularity or enforceability of such Letter
of Credit and INCLUDING,
30
<PAGE>
BUT NOT LIMITED TO, THOSE RESULTING FROM THE ISSUING BANK'S OWN SIMPLE
OR
CONTRIBUTORY NEGLIGENCE. Without limiting the generality of
the foregoing, such
obligations shall not be affected by any Default or
Event of Default or by any
subsequent reduction or termination of any Commitment of a Lender, and
each
payment by a Lender under this Section 2.12
shall be made without any offset,
abatement, withholding or reduction whatsoever.
Section
2.13. Commitment
Terminations.
The Borrower shall have the
------------------------
right at any time and from time to time,
upon three (3) Business Days' prior and
irrevocable written notice to the Administrative
Agent, to terminate or reduce
the Commitments without premium or penalty, in whole or in part, with any
partial reduction (i) to be in an amount
not less than $5,000,000 as determined
by the Borrower and in integral multiples of $5,000,000 and (ii)
as to the
Commitments to be allocated ratably among the Lenders in
proportion to their
respective Commitments;provided, that the
Revolving Credit Commitment Amount may
not be reduced to an amount less than
the sum of the aggregate principal amount
of outstanding Revolving Loans and L/C Obligations, after converting, if
necessary, any such outstanding Obligations to
their Dollar Equivalent amounts
in accordance with Section 10.19 and after giving effect to
payments on such
proposed termination or reduction date; provided, however,
that to the extent
-------- -------
the Borrower provides to the Administrative
Agent cash collateral in an amount
sufficient to cover such shortage or back to back letters of credit
from a
bank(s) or financial institution(s) whose short-term
unsecured debt rating is
rated A or above from either S&P or
Moody's or such other bank(s) or financial
institution(s) satisfactory to the Required Lenders in an amount
equal to the
undrawn face amount of any applicable outstanding Letters of
Credit with an
expiration date of at least five (5) days after the expiration date
of any
applicable Letter of Credit and which provide
that the Administrative Agent may
make a drawing thereunder in the event
that it pays a drawing under such Letter
of Credit. The Administrative Agent shall
give prompt notice to each Lender of
any such termination or reduction of the Commitments. Any termination of
Commitments pursuant to this Section 2.13 is permanent and may not be
reinstated.
Section
2.14. Increase
of Commitments; Additional Lenders.
-----------------------------------------------
(a)
So long as no Event of Default has occurred and is continuing,
from time to time after the Initial
Availability Date, the Borrower may, upon at
least 30 days' written notice to the
Administrative Agent, elect to increase the
Revolving Credit Commitment Amount up to a total amount not to exceed
$1,000,000,000 (the amount of any such increase, the "Additional
Commitment
Amount").
(b)
The Borrower
may designate one or more banks or other
financial institutions (which may be, but need not be, one or more of the
existing Lenders) which at the time agree to, in the case of
any such Person
that is an existing Lender, increase its
Commitment and in the case of any other
such Person (an "Additional Lender"), become a party to this Agreement;
provided, however, that any bank or financial institution that is not an
-------- -------
existing Lender must be acceptable to the
Administrative Agent, which acceptance
will not be unreasonably withheld or
delayed. The sum of
the increases in the
Commitments of the existing Lenders pursuant to this
subsection (b) plus the
Commitments of the Additional Lenders shall not in the aggregate exceed
the
Additional Commitment Amount.
31
<PAGE>
(c)
An increase
in the aggregate amount of the Commitments
pursuant to this Section 2.14 shall become effective upon
the receipt by the
-------------
Administrative Agent of a Joinder Agreement signed by the Borrower,
by each
Additional Lender and by each other Lender
whose Commitment is to be increased,
together with such evidence of appropriate
corporate authorization on the part
of the Borrower with respect to the increase in the Commitments and such
opinions of counsel for the Borrower with respect to the increase in the
Commitments as the Administrative Agent may reasonably request.
(d)
Upon the acceptance of any such agreement by the
Administrative Agent, the Revolving Credit
Commitment Amount shall automatically
be increased by the amount of the Commitments
added through such agreement and
the Commitment amounts of each Lender set forth on the
signature pages hereto
shall automatically be deemed to be updated.
(e)
Upon any increase in the aggregate amount
of the Commitments
pursuant to this Section 2.14 that is not pro rata
among all Lenders, (x) the
------------
Borrower shall prepay all outstanding Loans
in their entirety, together with any
breakage fees and funding losses that are required to be paid pursuant
to
Section 2.11, and, to the extent the
Borrower elects to do so and subject to the
conditions specified in Article IV, the Borrower shall
reborrow Loans from the
Lenders in proportion to their respective Commitments after
giving effect to
such increase, and (y) effective upon such increase, the amount of the
participations held by each Lender in each Letter of Credit
then outstanding
shall be adjusted such that, after giving effect to such adjustments,
the
Lenders shall hold participations in each such Letter of Credit in the
proportion its respective Commitment bears to the aggregate
Commitments after
giving effect to such increase.
Section
2.15. Additional
Interest Costs.
---------------------------
(a)
Mandatory Costs
Rate. If and so long as any Lender is
----------------------
required to make special deposits with the
Bank of England, to maintain reserve
asset ratios or to pay fees, in each case in respect of such Lender's
Eurocurrency Loans in any currency other than
Dollars, such Lender may require
the Borrower to pay, contemporaneously
with each payment of interest on each of
such Loans, additional interest on such Loan at a rate
per annum equal to the
Mandatory Costs Rate calculated in
accordance with the formula and in the manner
set forth in Exhibit 2.15 hereto.
-------------
(b)
Other Requirements for Additional Interest. If and so long as
------------------------------------------
any Lender is required to comply with
reserve assets, liquidity, cash margin or
other requirements of any monetary or other authority (including any such
requirement imposed by the European Central Bank or the European System of
Central Banks, but excluding requirements reflected in the
Statutory Reserve
Rate or the Mandatory Costs Rate) in respect of any of such Lender's
Eurocurrency Loans in any currency other than
Dollars, such Lender may require
the Borrower to pay, contemporaneously
with each payment of interest on each of
such Loans subject to such requirements,
additional interest on such Loan at a
rate per annum specified by such Lender to be the cost to such Lender of
complying with such requirements in relation to such Loan.
32
<PAGE>
(c)
Determination of
Amounts Due. Any additional interest owed
-------------------------------
pursuant to paragraph (a) or (b) above shall be determined by the
relevant
Lender and notified to the Borrower (with a
copy to the Administrative Agent) in
the form of a certificate setting forth
such additional interest at least five
Business Days before each date on which interest is payable
for the relevant
Loan, and such additional interest so notified to
the Borrower by such Lender
shall be payable to the Administrative
Agent for the account of such Lender on
each date on which interest is payable for such Loan.
(d)
Limitation on
Amounts Due. Subject to the provisions of
----------------------------
Section 8.3(c), failure or delay on the part of any Lender
on any occasion to
demand additional interest pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such additional interest on any
subsequent occasion.
ARTICLE 3. FEES
AND PAYMENTS.
Section
3.1. Fees.
----
(a)
Facility Fees.
The Borrower agrees to pay to the
--------------
Administrative Agent for the account of each
Lender a facility fee, which shall
accrue at the Applicable Facility Fee Rate
on the daily amount of the Commitment
of such Lender (whether used or unused)
during the period from and including the
Initial Availability Date to but excluding the date on which
such Commitment
terminates; provided that, if such Lender
continues to have any Revolving Credit
Exposure after its Commitment terminates,
then such facility fee shall continue
to accrue on the daily amount of such Lender's
Revolving Credit Exposure from
and including the date on which its Commitment
terminates to but excluding the
date on which such Lender ceases to have
any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last
Business Day of March,
June, September and December of each year,
commencing on December 31, 2003, on
the date(s) on which the Commitments shall
have terminated and the Lenders shall
have no further Revolving Credit Exposures, and on the Maturity Date.
All
facility fees shall be computed on the
basis of a year of 360 days and shall be
payable
