Exhibit 10.13
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CREDIT AGREEMENT
Dated as of November 10, 1997
among
DEEPWATER DRILLING II L.L.C.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH,
as Documentation Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged By
BANCAMERICA XXXXXXXXX XXXXXXXX
and
NATWEST MARKETS
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS
ARTICLE II THE CREDITS
2.01 Amounts and Terms of Commitments
2.02 Loan Accounts
2.03 Procedure for Borrowing
2.04 Conversion and Continuation Elections
2.05 Voluntary Termination or Reduction of Commitments
2.06 Optional Prepayments
2.07 Repayment; Mandatory Prepayment and Commitment Termination.
2.08 Interest
2.09 Fees
2.10 Computation of Fees and Interest
2.11 Payments by the Company
2.12 Payments by the Banks to the Administrative Agent
2.13 Sharing of Payments, Etc.
2.14 Guaranty
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes
3.02 Illegality
3.03 Increased Costs and Reduction of Return
3.04 Funding Losses
3.05 Inability to Determine Rates
3.06 Reserves on Offshore Rate Loans
3.07 Certificates of Banks
3.08 Substitution of Banks
3.09 Survival
ARTICLE IV CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans
4.02 Conditions to All Borrowings
ARTICLE V REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence and Power
5.02 Corporate Authorization; No Contravention
5.03 Governmental Authorization
5.04 Binding Effect
5.05 Litigation
5.06 No Default
5.07 ERISA
5.08 Use of Proceeds; Margin Regulations
5.09 Title to Properties
5.10 Tax Status; Taxes
5.11 Financial Condition
5.12 Environmental Matters
5.13 Regulated Entities
5.14 No Burdensome Restrictions
5.15 Copyrights, Patents, Trademarks and Licenses, Etc.
5.16 Subsidiaries
5.17 Insurance
5.18 Solvency
5.19 Full Disclosure
ARTICLE VI AFFIRMATIVE COVENANTS
6.01 Financial Statements
6.02 Certificates; Other Information
6.03 Notices
6.04 Preservation of Existence, Etc.
6.05 Maintenance of Property
6.06 Insurance
6.07 Payment of Obligations
6.08 Compliance with Laws
6.09 ERISA
6.10 Inspection of Property and Books and Records
6.11 Environmental Laws
6.12 Use of Proceeds
6.13 Covenants Regarding R&B Subsidiary Guarantors
6.14 Further Assurances
ARTICLE VII NEGATIVE COVENANTS
7.01 Limitation on Liens
7.02 Disposition of Assets
7.03 Consolidations and Mergers
7.04 Loans and Investments
7.05 Limitation on Indebtedness
7.06 Transactions with Affiliates
7.07 Margin Stock, Etc.
7.08 Contingent Obligations
7.09 Joint Ventures
7.10 Restricted Payments
7.11 Change in Business
7.12 Accounting Changes
ARTICLE VIII EVENTS OF DEFAULT
8.01 Events of Default
8.02 Remedies
8.03 Rights Not Exclusive
ARTICLE IX THE AGENT
9.01 Appointment and Authorization; "Administrative Agent"
9.02 Delegation of Duties
9.03 Liability of Agent-Related Persons
9.04 Reliance by Administrative Agent
9.05 Notice of Default
9.06 Credit Decision
9.07 Indemnification of Agent-Related Persons
9.08 Agents in Individual Capacity
9.09 Successor Agent
9.10 Withholding Tax
9.11 Documentation Agent; Arrangers
ARTICLE X MISCELLANEOUS
10.01 Amendments and Waivers
10.02 Notices
10.03 No Waiver; Cumulative Remedies
10.04 Costs and Expenses
10.05 Company Indemnification
10.06 Marshalling; Payments Set Aside
10.07 Successors and Assigns
10.08 Assignments, Participations, Etc.
10.09 Confidentiality
10.10 Set-off
10.11 Interest
10.12 Notification of Addresses, Lending Offices, Etc.
10.13 Counterparts
10.14 Severability
10.15 No Third Parties Benefited
10.16 Governing Law and Jurisdiction
10.17 Waiver of Jury Trial
10.18 Entire Agreement
SCHEDULES
Schedule 1.01 Definitions
Schedule 2.01 Commitments
Schedule 5.16 Subsidiaries and Minority Interests
Schedule 7.01 Permitted Liens
Schedule 7.05 Permitted Indebtedness
Schedule 10.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D [Intentionally Left Blank]
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Promissory Note
Exhibit G-1 Form of Guaranty (Conoco)
Exhibit G-2 Form of Guaranty (R&B)
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of November 10, 1997, among
DEEPWATER DRILLING II L.L.C., a Delaware limited liability company (the
"Company"), the several financial institutions from time to time party to
this Agreement (collectively, the "Banks"; individually, a "Bank"), Bank of
America National Trust and Savings Association, as administrative agent for
the Banks (the "Administrative Agent"), and National Westminster Bank Plc,
as documentation agent for the Banks (the "Documentation Agent", and,
together with the Administrative Agent, the "Agents").
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms shall have the meanings set forth in Schedule 1.01
attached hereto.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on
the terms and conditions set forth herein, to make loans to the Company
(each such loan, a "Revolving Loan" or a "Loan") from time to time on any
Business Day during the period from the Closing Date to the Revolving
Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.01 (such amount, as the same
may be reduced under Section 2.05 or as a result of one or more assignments
under Section 10.08, the Bank's "Commitment"); provided, however, that,
after giving effect to any Borrowing, the aggregate principal amount of all
outstanding Loans shall not at any time exceed the combined Commitments.
Within the limits of each Bank's Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this Section 2.01,
prepay under Section 2.06 and reborrow under this Section 2.01.
2.02 Loan Accounts. (a) The Loans made by each Bank shall be
evidenced by one or more loan accounts or records maintained by such Bank
in the ordinary course of business. The loan accounts or records
maintained by the Administrative Agent and each Bank shall be conclusive
absent manifest error of the amount of the Loans made by the Banks to the
Company and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with respect to
the Loans.
(b) Upon the request of any Bank made through the Administrative
Agent, the Loans made by such Bank may be evidenced by one or more Notes,
instead of or in addition to loan accounts. Each such Bank shall endorse
on the schedules annexed to its Note(s) the date, amount and maturity of
each Loan made by it and the amount of each payment of principal made by
the Company with respect thereto. Each such Bank is irrevocably authorized
by the Company to endorse its Note(s) and each Bank's record shall be
conclusive absent manifest error; provided, however, that the failure of a
Bank to make, or a Bank's error in making, a notation thereon with respect
to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank.
2.03 Procedure for Borrowing. (a) Each Borrowing shall be made upon
the Company's irrevocable written notice delivered to the Administrative
Agent in the form of a Notice of Borrowing (which notice must be received
by the Administrative Agent prior to 11:00 a.m. (Houston time) (i) three
(3) Business Days prior to the requested Borrowing Date, in the case of
Offshore Rate Loans; and (ii) one (1) Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying: (A) the
amount of the Borrowing, which shall be in an aggregate minimum amount of
$5,000,000 or any multiple of $1,000,000 in excess thereof; (B) the
requested Borrowing Date, which shall be a Business Day; (C) the Type of
Loans comprising the Borrowing; and (D) the duration of the Interest Period
applicable to such Loans included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest Period for any
Borrowing comprised of Offshore Rate Loans, such Interest Period shall be
three months.
(b) The Administrative Agent will promptly notify each Bank of
its receipt of any Notice of Borrowing and of the amount of such Bank's Pro
Rata Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the
Company at the Administrative Agent's Payment Office by 1:00 p.m. (Houston
time) on the Borrowing Date requested by the Company in funds immediately
available to the Administrative Agent. The proceeds of all such Loans will
then be made available to the Company by the Administrative Agent by wire
transfer in accordance with written instructions provided to the
Administrative Agent by the Company of like funds as received by the
Administrative Agent.
(d) After giving effect to any Borrowing, unless the
Administrative Agent shall otherwise consent, there may not be more than
ten (10) different Interest Periods in effect.
2.04 Conversion and Continuation Elections. (a) The Company may,
upon irrevocable written notice to the Administrative Agent in accordance
with subsection 2.04(b): (i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest Period,
in the case of any other Type of Loans, to convert any such Loans (or any
part thereof in an amount not less than $5,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof) into Loans of any other
Type; or (ii) elect, as of the last day of the applicable Interest Period,
to continue any Loans having Interest Periods expiring on such day (or any
part thereof in an amount not less than $5,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof); provided, that, if at
any time the aggregate amount of Offshore Rate Loans in respect of any
Borrowing is reduced, by payment, prepayment, or conversion of part thereof
to be less than $5,000,000, such Offshore Rate Loans shall automatically
convert into Base Rate Loans, and on and after such date the right of the
Company to continue such Loans as, and convert such Loans into, Offshore
Rate Loans shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not
later than 11:00 a.m. (Houston time) at least (i) three (3) Business Days
in advance of the Conversion/Continuation Date, if the Loans are to be
converted into or continued as Offshore Rate Loans; and (ii) one (1)
Business Day in advance of the Conversion/Continuation Date, if the Loans
are to be converted into Base Rate Loans, specifying: (A) the proposed
Conversion/Continuation Date; (B) the aggregate amount of Loans to be
converted or continued; (C) the Type of Loans resulting from the proposed
conversion or continuation; and (D) other than in the case of conversions
into Base Rate Loans, the duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, or, if any Default or
Event of Default then exists, the Company shall be deemed to have elected
to convert such Offshore Rate Loans into Base Rate Loans effective as of
the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Bank of
its receipt of a Notice of Conversion/Continuation, or, if no timely notice
is provided by the Company, the Administrative Agent will promptly notify
each Bank of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans, with respect to which the notice was given,
held by each Bank.
(e) Unless the Majority Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to
have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, unless the Administrative Agent shall otherwise consent, there may
not be more than ten (10) different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than five (5) Business Days' prior notice to the
Administrative Agent, terminate the Commitments, or permanently reduce the
Commitments by an aggregate minimum amount of $5,000,000, or any integral
multiple of $1,000,000 in excess thereof; unless, after giving effect
thereto and to any prepayments of Loans made on the effective date thereof,
the then-outstanding principal amount of the Loans would exceed the amount
of the combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any reduction of
the Commitments shall be applied to each Bank according to its Pro Rata
Share. All accrued commitment fees to, but not including, the effective
date of any reduction or termination of Commitments shall be paid on the
effective date of such reduction or termination.
2.06 Optional Prepayments. Subject to Section 3.04, the Company may,
at any time or from time to time, upon not less than five (5) Business
Days' irrevocable notice to the Administrative Agent, ratably prepay Loans
in whole or in part, in minimum amounts of $5,000,000, or any integral
multiple of $1,000,000 in excess thereof. Such notice of prepayment shall
specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid. The Administrative Agent will promptly notify each Bank of its
receipt of any such notice, and of such Bank's Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall make
such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid and any amounts required
pursuant to Section 3.04.
2.07 Repayment; Mandatory Prepayment and Commitment Termination. (a)
The Company shall repay to the Banks on the Revolving Termination Date the
aggregate principal amount of Loans outstanding on such date.
(b) If a Change of Control Trigger Event (Conoco) shall occur,
then on the thirtieth (30th) day after such occurrence, unless otherwise
agreed in writing by all Banks prior to such thirtieth (30th) day, (a) the
Commitment of each Bank shall automatically terminate, and (b) the Company
shall, without notice or demand, repay the unpaid principal amount of all
Loans.
2.08 Interest. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per
annum equal to the Offshore Rate or the Base Rate, as the case may be (and
subject to the Company's right to convert to other Types of Loans under
Section 2.04), plus the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Loans under Section 2.06 for the portion of the Loans so
prepaid and upon payment (including prepayment) in full thereof and, during
the existence of any Event of Default, interest shall be paid on demand of
the Administrative Agent at the request or with the consent of the Majority
Banks.
(c) Notwithstanding subsection (a) of this Section, while any
Event of Default exists or after acceleration, the Company shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans and
other Obligations, at a rate per annum which is determined by adding 2% per
annum to the Applicable Margin then in effect for such Loans and, in the
case of Obligations not subject to an Applicable Margin, at a rate per
annum equal to the Base Rate plus 2%; provided, however, that, on and after
the expiration of any Interest Period applicable to any Offshore Rate Loan
outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest
at a rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank under this Section 2.08 shall be
subject to the limitation that payments of interest shall not be required
for any period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by such
Bank would be contrary to the provisions of any law applicable to such Bank
limiting the highest rate of interest that may be lawfully contracted for,
charged or received by such Bank, and in such event the Company shall pay
such Bank interest at the highest rate permitted by applicable law.
2.09 Fees. (a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arrangers for the Arrangers' own account, and shall
pay an agency fee to the Administrative Agent for the Administrative
Agent's own account, as required by the fee letter agreement (herein called
the "Fee Letter") executed by the Company dated November 5, 1997.
(b) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar
quarter based upon the daily utilization for that quarter as calculated by
the Administrative Agent, equal to one-tenth of one percent (0.10%) percent
per annum. Such commitment fee shall accrue from the date which is the
earlier of (x) November 14, 1997, or (y) the date of the Initial Borrowing
Date, through the Revolving Termination Date, and shall be due and payable
quarterly in arrears on the last Business Day of each quarter commencing on
December 31, 1997, through the Revolving Termination Date, with the final
payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Commitments under Section
2.05 or Section 2.07, the accrued commitment fee calculated for the period
ending on such date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being calculated on the
basis of the period from such reduction or termination date to such
quarterly payment date. The commitment fees provided in this subsection
shall accrue at all times after the above-mentioned date, including at any
time during which one or more conditions in Article IV are not met.
2.10 Computation of Fees and Interest. (a) All computations of
interest for Base Rate Loans when the Base Rate is determined by BofA's
"reference rate" shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more interest being paid than if computed on
the basis of a 365-day year). Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Company and the Banks in the
absence of manifest error. The Administrative Agent will, at the request of
the Company or any Bank, deliver to the Company or the Bank, as the case
may be, a statement showing the quotations used by the Administrative Agent
in determining any interest rate and the resulting interest rate.
2.11 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except
as otherwise expressly provided herein, all payments by the Company shall
be made to the Administrative Agent for the account of the Banks at the
Administrative Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 1:00 p.m. (Houston time) on the
date specified herein. The Administrative Agent will promptly distribute
to each Bank its Pro Rata Share (or other applicable share as expressly
provided herein) of such payment in like funds as received. Any payment
received by the Administrative Agent later than 1:00 p.m. (Houston time)
shall be deemed to have been received on the following Business Day and any
applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Banks that the
Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in
full to the Administrative Agent on such date in immediately available
funds and the Administrative Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent the
Company has not made such payment in full to the Administrative Agent, each
Bank shall repay to the Administrative Agent on demand such amount
distributed to such Bank, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such
Bank until the date repaid.
2.12 Payments by the Banks to the Administrative Agent. (a) Unless
the Administrative Agent receives notice from a Bank on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at
least one (1) Business Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to the
Administrative Agent for the account of the Company the amount of that
Bank's Pro Rata Share of the Borrowing, the Administrative Agent may assume
that each Bank has made such amount available to the Administrative Agent
in immediately available funds on the Borrowing Date and the Administrative
Agent may (but shall not be so required), in reliance upon such assumption,
make available to the Company on such date a corresponding amount. If and
to the extent any Bank shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative
Agent in such circumstances has made available to the Company such amount,
that Bank shall on the Business Day following such Borrowing Date make such
amount available to the Administrative Agent, together with interest at the
Federal Funds Rate for each day during such period. A notice of the
Administrative Agent submitted to any Bank with respect to amounts owing
under this subsection (a) shall be conclusive, absent manifest error. If
such amount is so made available, such payment to the Administrative Agent
shall constitute such Bank's Loan on the date of Borrowing for all purposes
of this Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing Date, the
Administrative Agent will notify the Company of such failure to fund and,
upon demand by the Administrative Agent, the Company shall, within three
(3) Business Days, pay such amount to the Administrative Agent for the
Administrative Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such
Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a
Loan on such Borrowing Date, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on
any Borrowing Date.
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other
share contemplated hereunder), such Bank shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Banks
such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each
of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such purchase
shall to that extent be rescinded and each other Bank shall repay to the
purchasing Bank the purchase price paid therefor, together with an amount
equal to such paying Bank's ratable share (according to the proportion of
(i) the amount of such paying Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off,
but subject to Section 10.10) with respect to such participation as fully
as if such Bank were the direct creditor of the Company in the amount of
such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify
the Banks following any such purchases or repayments.
2.14 Guaranty. The Obligations shall be unconditionally guaranteed by
each Guarantor pursuant to, and to the extent provided in, the Guaranty
executed by it.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to each Bank or
to either Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any
sum payable hereunder to any Bank or Agent, then: (i) the sum payable shall
be increased as necessary so that, after making all required deductions and
withholdings (including deductions and withholdings applicable to
additional sums payable under this Section), such Bank or Agent, as the
case may be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; (iii) the
Company shall pay the full amount deducted or withheld to the relevant
taxing authority or other authority in accordance with applicable law; and
(iv) the Company shall also pay to each Bank, or the Administrative Agent
for the account of such Bank, at the time interest is paid, Further Taxes
in the amount that the respective Bank specifies as necessary to preserve
the after-tax yield the Bank would have received if such Taxes, Other Taxes
or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Bank
and Administrative Agent for the full amount of i) Taxes, ii) Other Taxes,
and iii) Further Taxes in the amount that the respective Bank specifies as
necessary to preserve the after-tax yield such Bank would have received if
such Taxes, Other Taxes or Further Taxes had not been imposed, and any
liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such Taxes, Other
Taxes or Further Taxes were correctly or legally asserted. Payment under
this indemnification shall be made within 30 days after the date the
applicable Bank or the Administrative Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the Company
of Taxes, Other Taxes or Further Taxes, the Company shall furnish to each
Bank or Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to
such Bank or the Administrative Agent.
(e) If the Company is required to pay any amount to any Bank or
Administrative Agent pursuant to subsection (b) or (c) of this Section,
then such Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office
so as to eliminate any such additional payment by the Company which may
thereafter accrue, if such change in the sole judgment of such Bank is not
otherwise disadvantageous to such Bank.
3.02 Illegality. (a) If any Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending Office
to make Offshore Rate Loans, then, on notice thereof by the Bank to the
Company through the Administrative Agent, any obligation of that Bank to
make Offshore Rate Loans shall be suspended until the Bank notifies the
Administrative Agent and the Company that the circumstances giving rise to
such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Administrative Agent),
prepay in full such Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon and amounts required under Section
3.04, either on the last day of the Interest Period thereof, if the Bank
may lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such
Offshore Rate Loan. If the Company is required to so prepay any Offshore
Rate Loan, then, concurrently with such prepayment, the Company may
(subject to Section 4.02) borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Loans has been so terminated or suspended, the Company may elect, by
giving notice to the Bank through the Administrative Agent that all Loans
which would otherwise be made by the Bank as Offshore Rate Loans shall be
instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under
this Section, the affected Bank shall designate a different Lending Office
with respect to its Offshore Rate Loans if such designation will avoid the
need for giving such notice or making such demand and will not, in the
judgment of the Bank, be illegal or otherwise disadvantageous to the Bank.
3.03 Increased Costs and Reduction of Return. (a) If any Bank
determines that, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the compliance by
that Bank with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans, then the Company
shall be liable for, and shall from time to time, upon demand (with a copy
of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank, additional amounts as
are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or
(iv) compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by the
Bank or any corporation controlling the Bank and (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy
and such Bank's desired return on capital) determines that the amount of
such capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand of such Bank
to the Company through the Administrative Agent, the Company shall pay to
the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
3.04 Funding Losses. The Company shall reimburse each Bank and hold
each Bank harmless from any loss or expense which the Bank may sustain or
incur as a consequence of: (a) the failure of the Company to make on a
timely basis any payment of principal of any Offshore Rate Loan; (b) the
failure of the Company to borrow, continue or convert a Loan after the
Company has given (or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/ Continuation; (c) the failure of the Company to make
any prepayment in accordance with any notice delivered under Section 2.06;
(d) the prepayment (including under Section 2.07) or other payment
(including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or (e) the
automatic conversion under Section 2.04 of any Offshore Rate Loan to a Base
Rate Loan on a day that is not the last day of the relevant Interest
Period; including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable by the Company to
the Banks under this Section and under subsection 3.03(a), each Offshore
Rate Loan made by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at
the LIBOR used in determining the Offshore Rate for such Offshore Rate Loan
by a matching deposit or other borrowing in the interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Offshore Rate Loan is in fact so funded.
3.05 Inability to Determine Rates. If the Administrative Agent or the
Majority Banks determine that for any reason adequate and reasonable means
do not exist for determining the Offshore Rate for any requested Interest
Period with respect to a proposed Offshore Rate Loan by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, the Administrative Agent will promptly so notify the
Company and each Bank. Thereafter, the obligation of the Banks to make or
maintain Offshore Rate Loans hereunder shall be suspended until the
Administrative Agent, upon the instruction of the Majority Banks, revokes
such notice in writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Banks
shall make, convert or continue the Loans, as proposed by the Company, in
the amount specified in the applicable notice submitted by the Company, but
such Loans shall be made, converted or continued as Base Rate Loans instead
of Offshore Rate Loans.
3.06 Reserves on Offshore Rate Loans. The Company shall pay to each
Bank, if after the date hereof such Bank shall be required under
regulations of the FRB to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), additional costs on the unpaid
principal amount of each Offshore Rate Loan equal to the actual costs of
such reserves allocated to such Loan by the Bank (as determined by the Bank
in good faith, which determination shall be conclusive), payable on each
date on which interest is payable on such Loan, provided the Company shall
have received at least 15 days' prior written notice (with a copy to the
Administrative Agent) of such additional interest from the Bank. If a Bank
fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be payable 15 days from receipt of such
notice.
3.07 Certificates of Banks. Any Bank claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a
copy to the Administrative Agent) a certificate setting forth in reasonable
detail the amount payable to the Bank hereunder and such certificate shall
be conclusive and binding on the Company in the absence of manifest error.
3.08 Substitution of Banks. Upon the receipt by the Company from any
Bank (an "Affected Bank") of a claim for compensation under Section 3.03,
the Company may: (i) request the Affected Bank to use its best efforts to
obtain a replacement bank or financial institution satisfactory to the
Company and to each Agent (a "Replacement Bank") to acquire and assume all
or a ratable part of all of such Affected Bank's Loans and Commitment;
(ii) request one more of the other Banks to acquire and assume all or part
of such Affected Bank's Loans and Commitment; or (iii) designate a
Replacement Bank. Any such designation of a Replacement Bank under clause
(i) or (iii) shall be subject to the prior written consent of each Agent.
3.09 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Bank to make
its initial Loan hereunder is subject to the condition that the Agent shall
have received on or before the Initial Borrowing Date, all of the
following, in form and substance satisfactory to each Agent and each Bank,
and in sufficient copies for each Bank:
(a) Loan Documents. This Agreement and the Guaranty Agreements
executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions adopted by the members
of the Company authorizing the transactions contemplated hereby,
certified as of the Closing Date by the members, and copies of
resolutions of the board of directors of each Guarantor
authorizing the transactions contemplated hereby certified as of
the Closing Date by the Secretary or an Assistant Secretary of
the applicable Guarantor; and
(ii) A certificate of the Secretary or Assistant
Secretary of Guarantor, and a certificate of the members of the
Company, certifying the names and true signatures of the
officers, manager and/or representatives authorized to execute,
deliver and perform, as applicable, this Agreement, and all other
Loan Documents to be delivered hereunder;
(c) Organization Documents; Good Standing. Each of the
following documents:
(i) limited liability company agreement of the
Company, certified by the members as of the Closing Date, and the
certificate of incorporation and the bylaws of each Guarantor as
in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of such Guarantor, as of the Closing Date;
and
(ii) a good standing certificate for the Company and
each Guarantor from the Secretary of State (or similar,
applicable Governmental Authority) of its state of organization,
and from each state where the Company is qualified to do business
as a foreign company as of a recent date;
(d) Legal Opinions.
(i) an opinion of counsel (satisfactory to the Agents
and the Banks) to the Company, and addressed to the Agents and
the Banks, which opinion shall be in form and substance
satisfactory to the Agents and the Banks;
(ii) an opinion of Xxxxx X. Xxxxxx, Esq., General
Counsel, Reading & Xxxxx Corporation, addressed to the Agents and
the Banks, which opinion shall be in form and substance
satisfactory to the Agents and the Banks;
(iii) an opinion of Xxxxx Xxxxxxxx, Esq., Conoco Inc.,
addressed to the Agents and the Banks, which opinion shall be in
form and substance satisfactory to the Agents and the Banks; and
(iv) a favorable opinion of Xxxxxx & Xxxxxx, L.L.P.,
special counsel to the Administrative Agent.
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with fees and expenses of counsel to
the Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of special counsel fees and expenses as
shall constitute the Administrative Agent's reasonable estimate incurred or
to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude final settling of accounts between
the Company and the Administrative Agent); including any such costs, fees
and expenses arising under or referenced in Sections 2.09 and 10.04;
(f) Certificate. (i) A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that: (A) the
representations and warranties contained in Article V are true and correct
on and as of such date, as though made on and as of such date; (B) no
Default or Event of Default exists or would result from the initial
Borrowing; and (C) there has occurred since September 30, 1997, no event or
circumstance that has resulted or could reasonably be expected to result in
a Material Adverse Effect with respect to the Company; and (ii) a
certificate signed by an appropriate officer of each Guarantor, stating
that (A) the representations and warranties made by such Guarantor in the
Guaranty executed by it are true and correct on and as of such date, as
though made on and as of such date, and (B) since the date therein
specified in such certificate (which shall be June 30, 1997, for Conoco and
shall be September 30, 1997, for R&B), there has occurred no event or
circumstance that has resulted or could reasonably be expected to result in
a Material Adverse Effect with respect to such Guarantor or any of the
direct or indirect owners of equity interests in the Company; and
(g) Other Documents. Such other approvals, opinions, documents
or materials as the Administrative Agent or any Bank may request.
4.02 Conditions to All Borrowings. The obligation of each Bank to
make any Loan to be made by it (including its initial Loan) or to continue
or convert any Loan under Section 2.04 is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date or
Conversion/Continuation Date:
(a) Notice of Borrowing or Conversion/Continuation. The
Administrative Agent shall have received (with, in the case of the initial
Loan only, a copy for each Bank) a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on
and as of such Borrowing Date or Conversion/Continuation Date with the same
effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date);
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing or continuation or conversion;
and
(d) No Change of Control Trigger Event (Conoco). No Change of
Control Trigger Event (Conoco) shall have occurred.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by
the Company hereunder shall constitute a representation and warranty by the
Company hereunder, as of the date of each such notice and as of each
Borrowing Date or Conversion/Continuation Date, as applicable that the
conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Agents and Banks
that:
5.01 Corporate Existence and Power. The Company: (a) is a limited
liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization; (b) has the power
and authority and all governmental licenses, authorizations, consents and
approvals to own its assets, carry on its business and to execute, deliver,
and perform its obligations under the Loan Documents; (c) is duly qualified
as a foreign limited liability company and is licensed and in good standing
under the laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such qualification or
license; and (d) is in compliance with all Requirements of Law; except, in
each case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.02 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company of this Agreement and each other
Loan Document to which the Company is party, have been duly authorized by
all necessary action, and do not and will not: (a) contravene the terms of
any of the Company's Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which the Company is a
party or any order, injunction, writ or decree of any Governmental
Authority to which the Company or its property is subject; or (c) violate
any Requirement of Law.
5.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company
of the Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
5.05 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Company, any of its Subsidiaries, any Guarantor or
any of their respective properties which: (a) purport to affect or pertain
to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby; or (b) if determined adversely to the
Company or its Subsidiaries or any Guarantor, would reasonably be expected
to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court
or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
5.06 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. As of the
Closing Date, neither the Company nor any Subsidiary is in default under or
with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect, or that would, if such default
had occurred after the Closing Date, create an Event of Default under
subsection 8.01(e).
5.07 ERISA. The Company does not (and did not at any time prior to
the date hereof) sponsor, maintain or make contributions to, any Pension
Plan, and the Company is not obligated to do so.
5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by
Section 6.12 and Section 7.07. Neither the Company nor any Subsidiary is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
Margin Stock does not constitute more than 25% of the value of the assets
of the Company, and the Company does not have any present intention that
Margin Stock will constitute more than 25% of the value of such assets.
5.09 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of their
respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of
the Closing Date, the property of the Company and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
5.10 Tax Status; Taxes. The Company is considered a partnership for
federal and state income purposes not an association taxable as a
corporation. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed
tax assessment against the Company or any Subsidiary that would, if made,
have a Material Adverse Effect.
5.11 Financial Condition. (a) The unaudited consolidated balance
sheet of the Company and its Subsidiaries dated September 30, 1997: (i)
was prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein,
subject to ordinary, good faith year-end audit adjustments; and (ii) fairly
presents the financial condition of the Company and its Subsidiaries as of
the date thereof.
(b) Since September 30, 1997, there has been no Material Adverse
Effect.
5.12 Environmental Matters. The Company conducts, in the ordinary
course of business, a review of the effect of existing Environmental Laws
and existing Environmental Claims on its and its Subsidiaries' business,
operations and properties, and as a result thereof the Company has
reasonably concluded that such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
5.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary, is an "Investment Company" within the
meaning of the Investment Company Act of 1940. The Company is not subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation limiting its
ability to incur Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject
to any restriction in any Organization Document, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.
5.15 Copyrights, Patents, Trademarks and Licenses, Etc. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law,
rule, regulation, standard or code is pending or, to the knowledge of the
Company, proposed, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
5.16 Subsidiaries. The Company has no Subsidiaries other than those
specifically disclosed in Schedule 5.16 hereto and has no equity
investments in any other corporation or entity other than those
specifically disclosed in Schedule 5.16.
5.17 Insurance. The properties and business of the Company and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Company, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities
where the Company or such Subsidiary operates.
5.18 Solvency. The Company is Solvent.
5.19 Full Disclosure. None of the representations or warranties made
by the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Company or any Subsidiary in connection
with the Loan Documents (including the offering and disclosure materials
delivered by or on behalf of the Company to the Banks prior to the Closing
Date), contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Majority
Banks waive compliance in writing:
6.01 Financial Statements. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Majority Banks, with sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of the audited consolidated balance sheet
of the Company and its Subsidiaries as at the end of such year, setting
forth in comparative form the figures for the previous fiscal year, and
accompanied by the opinion of a nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state that such
consolidated financial statements present fairly the financial position for
the periods indicated in conformity with GAAP applied on a basis consistent
with prior years. Such opinion shall not be qualified or limited because
of a restricted or limited examination by the Independent Auditor of any
material portion of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year, a copy
of the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter for the period commencing on the
first day and ending on the last day of such quarter, and certified by a
Responsible Officer as fairly presenting, in accordance with GAAP (subject
to ordinary, good faith year-end audit adjustments), the financial position
of the Company and the Subsidiaries.
6.02 Certificates; Other Information. The Company shall furnish to
the Administrative Agent, with sufficient copies for each Bank: (a)
concurrently with the delivery of the financial statements referred to in
subsections 6.01(a) and (b), a Compliance Certificate executed by a
Responsible Officer; (b) promptly, copies of all financial statements and
reports that the Company sends to its members, and copies of all financial
statements and regular, periodical or special reports (including Forms 10K,
10Q and 8K), if any, that the Company or any Subsidiary may make to, or
file with, the SEC; and (c) promptly, such additional information regarding
the business, financial or corporate affairs of the Company or any
Subsidiary as the Administrative Agent, at the request of any Bank, may
from time to time request.
6.03 Notices. The Company shall promptly notify the Administrative
Agent and each Bank: (a) of the occurrence of any Default or Event of
Default, and of the occurrence or existence of any event or circumstance
that foreseeably will become a Default or Event of Default; (b) of (i) any
breach or non-performance of, or any default under, any Contractual
Obligation of the Company or any of its Subsidiaries which could reasonably
be expected to result in a Material Adverse Effect; and (ii) any dispute,
litigation, investigation, proceeding or suspension which may exist at any
time between the Company or any of its Subsidiaries and any Governmental
Authority which could reasonably be expected to result in a Material
Adverse Effect; (c) of the commencement of, or any material development in
(i) any litigation or proceeding affecting the Company or any Subsidiary in
which the amount of damages claimed is $1,000,000 (or its equivalent in
another currency or currencies) or more, or (ii) any litigation or
proceeding affecting the Company, a Subsidiary or a Guarantor and which, if
adversely determined, would reasonably be expected to have a Material
Adverse Effect, or in which the relief sought is an injunction or other
stay of the performance of this Agreement or any Loan Document; (d) upon,
but in no event later than 10 days after, becoming aware of (i) any and all
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened against the Company or any Subsidiary
or any of their respective properties pursuant to any applicable
Environmental Laws, and (ii) all other Environmental Claims; (e) of any
other litigation or proceeding affecting the Company or any of its
Subsidiaries or any Guarantor which the Company or a Guarantor would be
required to report to the SEC pursuant to the Exchange Act, within four
days after the same is reported to the SEC; (f) of any material change in
accounting policies or financial reporting practices by the Company or any
of its consolidated Subsidiaries or any Guarantor; and (g) of any proposed
amendment (prior to adoption thereof) to the Limited Liability Company
Agreement (such notice to be accompanied by a copy of the proposed
amendment) and, after adoption thereof, a copy of the amendment shall be
delivered to the Administrative Agent.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each
notice under subsection 6.03(a) shall describe with particularity any and
all clauses or provisions of this Agreement or other Loan Document that
have been (or foreseeably will be) breached or violated.
6.04 Preservation of Existence, Etc. The Company shall, and shall
cause each Subsidiary to: (a) preserve and maintain in full force and
effect its existence and good standing under the laws of its state or
jurisdiction of incorporation; (b) preserve and maintain in full force and
effect all governmental rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business except in connection with transactions permitted by Section 7.03;
(c) use reasonable efforts, in the ordinary course of business, to preserve
its business organization and goodwill; and (d) preserve or renew all of
its registered patents, trademarks, trade names and service marks, the non-
preservation of which could reasonably be expected to have a Material
Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and shall
cause each Subsidiary to maintain, and preserve all its property which is
used or useful in its business in good working order and condition,
ordinary wear and tear excepted, and make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect, except as
permitted by Section 7.02. The Company and each Subsidiary shall use the
standard of care typical in the industry in the operation and maintenance
of its facilities.
6.06 Insurance. The Company shall maintain, and shall cause each of
its Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and business
as may be required by law, and insurance against loss or damage of the
kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried
under similar circumstances by such other Persons. Upon request of the
Administrative Agent or any Bank, the Company shall furnish the
Administrative Agent, with sufficient copies for each Bank, at reasonable
intervals a certificate of a Responsible Officer of the Company (and, if
requested by the Administrative Agent, any insurance broker of the Company)
setting forth the nature and extent of all insurance maintained by or on
behalf of the Company and its Subsidiaries in accordance with this Section
(and which, in the case of a certificate of a broker, were placed through
such broker).
6.07 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable,
all their respective obligations and liabilities, including: (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are
being maintained by the Company or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all
indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.08 Compliance with Laws. The Company shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements
of Law of any Governmental Authority having jurisdiction over it or its
business, except such as may be contested in good faith or as to which a
bona fide dispute may exist.
6.09 ERISA. The Company shall not at any time be obligated to
sponsor, maintain or make contributions to any Pension Plan.
6.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record
and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such
Subsidiary. The Company shall permit, and shall cause each Subsidiary to
permit, representatives and independent contractors of either Agent or any
Bank to visit and inspect any of their respective properties, to examine
their respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective directors, officers,
and independent public accountants, all at the expense of the Company and
at such reasonable times during normal business hours and as often as may
be reasonably desired, upon reasonable advance notice to the Company;
provided, however, when an Event of Default exists, either Agent or any
Bank may do any of the foregoing at the expense of the Company at any time
during normal business hours and without advance notice.
6.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws.
6.12 Use of Proceeds. The Company shall use the proceeds of the Loans
to repay principal and interest on existing loans from members and to fund
ongoing interim construction costs in connection with construction of the
Drillship including, without limitation, progress payments to the shipyard,
payments for owner-furnished equipment ("OFE") and payments to service
providers (including affiliates of the Guarantors) and capitalized interest
costs.
6.13 Covenants Regarding R&B Subsidiary Guarantors. (a) The Company
agrees to use reasonable efforts to obtain, as soon as practicable after
Closing, an opinion of Australian counsel in form and substance
satisfactory to the Administrative Agent and the Majority Banks with
respect to the Guaranty executed by Reading & Xxxxx (A) Pty Ltd.
(b) If, at any time there exists any subsidiary of Reading &
Xxxxx that is an obligor (either a borrower or a guarantor) on all or any
portion of the R&B Credit Facility, the Company shall cause such subsidiary
to execute and deliver a Guaranty Agreement in substantially the form
attached hereto as Exhibit G-2, together with an opinion of counsel of such
subsidiary in form and substance satisfactory to the Administrative Agent
and the Majority Banks.
6.14 Further Assurances. The Company shall ensure that all written
information, exhibits and reports furnished to the Agents or the Banks do
not and will not contain any untrue statement of a material fact and do not
and will not omit to state any material fact or any fact necessary to make
the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Agents and
the Banks and correct any defect or error that may be discovered therein or
in any Loan Document or in the execution, acknowledgment or recordation
thereof.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Majority
Banks waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, and shall not suffer
or permit any Subsidiary to, directly or indirectly, make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"): (a) any Lien existing on property of the Company or
any Subsidiary on the Closing Date and set forth in Schedule 7.01 securing
Indebtedness outstanding on such date; (b) any Lien created under any Loan
Document; (c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to
the extent that non-payment thereof is permitted by Section 6.07, provided
that no notice of lien has been filed or recorded under the Code; (d)
carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business which are not delinquent or remain payable without penalty or
which are being contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale of
the property subject thereto; (e) Liens (other than any Lien imposed by
ERISA) consisting of pledges or deposits required in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other social security legislation; (f) Liens consisting of judgment or
judicial attachment liens, provided that the enforcement of such Liens is
effectively stayed and all such liens in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $1,000,000;
(g) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are
not substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the businesses of the Company and its Subsidiaries; and
(h) Liens arising solely by virtue of any statutory or common law provision
relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by regulations
promulgated by the FRB, and (ii) such deposit account is not intended by
the Company or any Subsidiary to provide collateral to the depository
institution.
7.02 Disposition of Assets. The Company shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, sell, assign,
lease, convey, transfer or otherwise dispose of (whether in one or a series
of transactions) any property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing, except: (a) dispositions of inventory, or used, worn-out or
surplus equipment, all in the ordinary course of business; and (b) the sale
of equipment to the extent that such equipment is exchanged for credit
against the purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied to the purchase price
of such replacement equipment.
7.03 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Subsidiary to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction
or in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to or in favor of any Person,
except: (a) any Subsidiary may merge with the Company, provided that the
Company shall be the continuing or surviving corporation, or with any one
or more Subsidiaries, provided that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall
be the continuing or surviving corporation; and (b) any Subsidiary may sell
all or substantially all of its assets (upon voluntary liquidation or
otherwise), to the Company or another Wholly-Owned Subsidiary.
7.04 Loans and Investments. The Company shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, or make
any commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or make
or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in, any Person including any
Affiliate of the Company (together, "Investments"), except for: (a)
Investments held by the Company or Subsidiary in the form of cash
equivalents; (b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services in
the ordinary course of business; and (c) extensions of credit by the
Company to any of its Wholly-Owned Subsidiaries or by any of its Wholly-
Owned Subsidiaries to another of its Wholly-Owned Subsidiaries.
7.05 Limitation on Indebtedness. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume, suffer to exist,
or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except: (a) Indebtedness incurred pursuant to this
Agreement; (b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 7.08; and (c) Indebtedness existing on the Closing Date
and set forth in Schedule 7.05.
7.06 Transactions with Affiliates. The Company shall not, and shall
not suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary.
7.07 Margin Stock; Etc.. (a) The Company shall not, and shall not
suffer or permit any Subsidiary to, use any portion of the Loan proceeds,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to
repay or otherwise refinance indebtedness of the Company or others incurred
to purchase or carry Margin Stock, (iii) to extend credit for the purpose
of purchasing or carrying any Margin Stock, or (iv) to acquire any security
in any transaction that is subject to Section 13 or 14 of the Exchange Act.
(b) The Company shall not, directly or indirectly, use any
portion of the Loan proceeds (i) knowingly to purchase Ineligible
Securities from BRS during any period in which BRS makes a market in such
Ineligible Securities, (ii) knowingly to purchase during the underwriting
or placement period Ineligible Securities being underwritten or privately
placed by BRS, or (iii) to make payments of principal or interest on
Ineligible Securities underwritten or privately placed by BRS and issued by
or for the benefit of the Company or any Affiliate of the Company. BRS is
a registered broker-dealer and permitted to underwrite and deal in certain
Ineligible Securities; and "Ineligible Securities" means securities which
may not be underwritten or dealt in by member banks of the Federal Reserve
System under Section 16 of the Banking Act of 1933 (12 U.S.C. 24,
Seventh), as amended.
7.08 Contingent Obligations. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to
exist any Contingent Obligations except: (a) endorsements for collection or
deposit in the ordinary course of business; (b) Permitted Swap Obligations;
and (c) Contingent Obligations deemed necessary by the Company in
connection with the construction, ownership and operation of the Drillship.
7.09 Joint Ventures. The Company shall not, and shall not suffer or
permit any Subsidiary to, enter into any Joint Venture.
7.10 Restricted Payments. The Company shall not, and shall not suffer
or permit any Subsidiary (other than a Wholly-Owned Subsidiary) to, declare
or make any payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any membership interests in
the Company, or purchase, redeem or otherwise acquire for value any such
membership interests, or any warrants, rights or options to acquire such
interests, now or hereafter outstanding.
7.11 Change in Business. The Company shall not, and shall not suffer
or permit any Subsidiary to, engage in any business other than
construction, ownership and operation of the Drillship.
7.12 Accounting Changes. The Company shall not, and shall not suffer
or permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Company or of any Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to make, (i) when and as
required to be made herein, payments of any amount of principal of any
Loan, or (ii) within five (5) Business Days after the same becomes due,
payment of any interest, fee or any other amount payable hereunder or under
any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty
by the Company, any Subsidiary or any Guarantor made or deemed made herein,
in any other Loan Document, or which is contained in any certificate,
document or financial or other statement by the Company, any Subsidiary,
any Guarantor or any Responsible Officer, furnished at any time under this
Agreement, or in or under any other Loan Document, is incorrect in any
material respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in Section 6.03; or
(d) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan
Document; provided, however, if such default is capable of being cured or
remedied, then such default shall not constitute an Event of Default unless
it shall continue unremedied for a period of 20 days; or
(e) Cross-Default. The Company or any Subsidiary (A) fails to
make any payment in respect of any Indebtedness or Contingent Obligation
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace
or notice period, if any, specified in the relevant document on the date of
such failure; or (B) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist, under any
agreement or instrument relating to any such Indebtedness or Contingent
Obligation, and such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such
failure if the effect of such failure, event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, such
Indebtedness to be declared to be due and payable prior to its stated
maturity, or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Subsidiary or any Guarantor (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in
the ordinary course; (iii) commences any Insolvency Proceeding with respect
to itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary or
any Guarantor, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of the
Company's or any Subsidiary's or any Guarantor's properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy;
(ii) the Company or any Subsidiary or any Guarantor admits the material
allegations of a petition against it in any Insolvency Proceeding, or an
order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any Subsidiary or any
Guarantor acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or
other similar Person for itself or a substantial portion of its property or
business; or
(h) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is
entered against the Company or any Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage) as to any single or
related series of transactions, incidents or conditions, of $1,000,000 or
more, and the same shall remain unsatisfied, unvacated and unstayed pending
appeal for a period of 10 days after the entry thereof; or
(i) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 10 Business Days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(j) Change of Control. There occurs a Change of Control
(Company); or
(k) LLC Agreement Amendment Event. There occurs an LLC
Agreement Amendment Event;
(l) Dissolution or Termination. There occurs any dissolution or
termination of the Company; or
(m) Guarantor Defaults. A Guarantor Event of Default occurs
under any Guaranty as defined in such Guaranty, or a Guaranty is for any
reason partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force and effect,
or a Guarantor or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at subsections (f) or (g) of
this Section occurs with respect to a Guarantor.
8.02 Remedies. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Majority
Banks, (a) declare the commitment of each Bank to make Loans to be
terminated, whereupon such commitments shall be terminated; (b) declare the
unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under
any other Loan Document to be immediately due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other notice of any kind, all of which are hereby expressly
waived by the Company; and (c) exercise on behalf of itself and the Banks
all rights and remedies available to it and the Banks under the Loan
Documents or applicable law; provided, however, that upon the occurrence of
any event specified in subsection (f) or (g) of Section 8.01 (in the case
of clause (i) of subsection (g) upon the expiration of the 60-day period
mentioned therein), the obligation of each Bank to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Administrative Agent or
any Bank.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Administrative Agent". Each Bank
hereby irrevocably (subject to Section 9.09) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Bank, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against the Administrative Agent.
Without limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement with reference to the Agents is not intended
to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting
parties.
9.02 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects with reasonable
care.
9.03 Liability of Agent-Related Persons. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other Loan
Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to
any of the Banks for any recital, statement, representation or warranty
made by the Company or any Subsidiary or Affiliate of the Company, or any
officer thereof, contained in this Agreement or in any other Loan Document,
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of the Company or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No Agent-
Related Person shall be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document,
or to inspect the properties, books or records of the Company or any of the
Company's Subsidiaries or Affiliates.
9.04 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority
Banks as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing
to take any such action. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or
consent of the Majority Banks and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Administrative Agent
to such Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory
to the Bank.
9.05 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Banks, unless the Administrative Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a "notice of default." The Administrative Agent will notify the Banks of
its receipt of any such notice. The Administrative Agent shall take such
action with respect to such Default or Event of Default as may be requested
by the Majority Banks in accordance with Article VIII; provided, however,
that unless and until the Administrative Agent has received any such
request, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the Agent-
Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereinafter taken, including any review of
the affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to
any Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of
the Company and its Subsidiaries, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Company and its
Subsidiaries hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to
the Banks by the Administrative Agent, the Agents shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
9.07 Indemnification of Agent-Related Persons. Whether or not the
transactions contemplated hereby are consummated, the Banks shall indemnify
upon demand each of the Agent-Related Persons (to the extent not reimbursed
by or on behalf of the Company and without limiting the obligation of the
Company to do so), pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Bank shall be liable for the
payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse
the Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Company. The undertaking in this Section
shall survive the payment of all Obligations hereunder and the resignation
or replacement of the Administrative Agent.
9.08 Agents in Individual Capacity. Each of the Agents and their
respective Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or
other business with the Company and its Subsidiaries and Affiliates as
though they were not the Agents hereunder and without notice to or consent
of the Banks. The Banks acknowledge that, pursuant to such activities, the
Agents and their respective Affiliates may receive information regarding
the Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agents shall be under no obligation to provide such
information to them. With respect to its Loans, each Agent shall have the
same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not an Agent, and the terms "Bank" and
"Banks" include BofA and NatWest Bank in their individual capacities.
9.09 Successor Agent. The Administrative Agent may, and at the
request of the Majority Banks shall, resign as Administrative Agent upon 30
days' notice to the Banks. If the Administrative Agent resigns under this
Agreement, the Majority Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be approved by
the Company. If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative
Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor agent
and the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of
this Article IX and Sections 10.04 and 10.05 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has
accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Majority
Banks appoint a successor agent as provided for above.
9.10 Withholding Tax. (a) If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441
or 1442 of the Code, such Bank agrees with and in favor of the
Administrative Agent, to deliver to the Administrative Agent: (i) if such
Bank claims an exemption from, or a reduction of, withholding tax under a
United States tax treaty, two properly completed and executed copies of IRS
Form 1001 before the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement; (ii) if such Bank
claims that interest paid under this Agreement is exempt from United States
withholding tax because it is effectively connected with a United States
trade or business of such Bank, two properly completed and executed copies
of IRS Form 4224 before the payment of any interest is due in the first
taxable year of such Bank and in each succeeding taxable year of such Bank
during which interest may be paid under this Agreement; and (iii) such
other form or forms as may be required under the Code or other laws of the
United States as a condition to exemption from, or reduction of, United
States withholding tax.
Such Bank agrees to promptly notify the Administrative Agent of any change
in circumstances which would modify or render invalid any claimed exemption
or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
and such Bank sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such Bank, such
Bank agrees to notify the Administrative Agent of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company to
such Bank. To the extent of such percentage amount, the Administrative
Agent will treat such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Bank, such Bank agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest
payment to such Bank an amount equivalent to the applicable withholding tax
after taking into account such reduction. However, if the forms or other
documentation required by subsection (a) of this Section are not delivered
to the Administrative Agent, then the Administrative Agent may withhold
from any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent
did not properly withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not delivered or was not
properly executed, or because such Bank failed to notify the Administrative
Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason) such
Bank shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, together with all costs and expenses (including Attorney Costs).
The obligation of the Banks under this subsection shall survive the payment
of all Obligations and the resignation or replacement of the Administrative
Agent.
9.11 Documentation Agent; Arrangers. None of the entities identified
on the facing page, signature pages or otherwise herein of this Agreement
as "Documentation Agent" or "Arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other
than, in the case of the Documentation Agent, those applicable to all
Banks. Without limiting the foregoing, none of the entities so identified
as a "Documentation Agent" or "Arranger" shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that it
has not relied, and will not rely, on any of the entities so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company or any Guarantor therefrom, shall
be effective unless the same shall be in writing and signed by the Majority
Banks (or by the Administrative Agent at the written request of the
Majority Banks) and the Company and acknowledged by the Administrative
Agent, and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment, or consent shall, unless in
writing and signed by all the Banks and the Company and acknowledged by the
Administrative Agent, do any of the following: (a) increase or extend the
Commitment of any Bank (or reinstate any Commitment terminated pursuant to
Section 2.07(b) or Section 8.02); (b) postpone or delay any date fixed by
this Agreement or any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Banks (or any of them) hereunder
or under any other Loan Document; (c) reduce the principal of, or the rate
of interest specified herein on any Loan, or (subject to clause (ii) below)
any fees or other amounts payable hereunder or under any other Loan
Document; (d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any
of them to take any action hereunder; or (e) amend this Section, or Section
2.14, or any provision herein providing for consent or other action by all
Banks; (f) discharge any Guarantor; (g) amend the definitions of "Change of
Control (Company)", "Change of Control (Conoco)" or "Change of Control
Trigger Event (Conoco)", or (h) waive or amend Section 8.01(j); and,
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Majority
Banks or all the Banks, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document,
and (ii) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed by the parties thereto.
10.02 Notices. (a) All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided
that any matter transmitted by the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on Schedule 10.02, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered,
to the address or facsimile number specified for notices on Schedule 10.02;
or, as directed to the Company or the Administrative Agent, to such other
address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and
the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third Business Day
after the date deposited into the U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Article II or IX to the
Administrative Agent shall not be effective until actually received by the
Administrative Agent.
(c) Any agreement of the Administrative Agent and the Banks
herein to receive certain notices by telephone or facsimile is solely for
the convenience and at the request of the Company. The Administrative
Agent and the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by the Company to give such
notice and the Administrative Agent and the Banks shall not have any
liability to the Company or other Person on account of any action taken or
not taken by the Administrative Agent or the Banks in reliance upon such
telephonic or facsimile notice. The obligation of the Company to repay the
Loans shall not be affected in any way or to any extent by any failure by
the Administrative Agent and the Banks to receive written confirmation of
any telephonic or facsimile notice or the receipt by the Administrative
Agent and the Banks of a confirmation which is at variance with the terms
understood by the Administrative Agent and the Banks to be contained in the
telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any
Bank, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as
Administrative Agent) and NatWest (including in its capacity as
Documentation Agent) within five (5) Business Days after demand (subject to
subsection 4.01(e)) for all costs and expenses incurred by each of them in
connection with the development, preparation, delivery, administration,
syndication, and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement,
any Loan Document and any other documents prepared in connection herewith
or therewith, and the consummation of the transactions contemplated hereby
and thereby, including Attorney Costs (but not including any allocated cost
of internal counsel incurred in connection with preparation of this
Agreement or preparation for Closing) incurred by BofA (including in its
capacity as Administrative Agent) and NatWest (including in its capacity as
Documentation Agent) with respect thereto; and
(b) pay or reimburse each of the Agents, Arrangers and Banks
within five Business Days after demand (subject to subsection 4.01(e)) for
all costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or any other Loan Document
during the existence of a Default or an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
10.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend
and hold each of the Agent-Related Persons, and each Bank, and each of
their respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans and the
termination, resignation or replacement of an Agent or replacement of any
Bank) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not
any Indemnified Person is a party thereto (all the foregoing, collectively,
the "Indemnified Liabilities"); provided, that the Company shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
10.06 Marshalling; Payments Set Aside. Neither the Agents nor the
Banks shall be under any obligation to xxxxxxxx any assets in favor of the
Company or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment to the
Administrative Agent or the Banks, or the Agents or the Banks exercise
their right of set-off, and such payment or the proceeds of such set-off or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by such Agent or Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Bank severally
agrees to pay to the Administrative Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Administrative Agent.
10.07 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and each
Bank.
10.08 Assignments, Participations, Etc. (a) Any Bank may, with
the written consent of the Company (except that the consent of the Company
shall not be required during the existence of an Event of Default) and the
Administrative Agent, which consent of the Company shall not be
unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Company or the
Administrative Agent shall be required in connection with any assignment
and delegation by a Bank to an Eligible Assignee that is an Affiliate of
such Bank) (each an "Assignee") all, or any ratable part of all, of the
Loans, the Commitments and the other rights and obligations of such Bank
hereunder; provided, however, that in the event a Bank assigns less than
all of its interests hereunder, it shall retain a Commitment of not less
than $10,000,000 after the consummation of such assignment; and provided
further that (i) the Company and the Agents may continue to deal solely and
directly with such Bank in connection with the interest so assigned to an
Assignee until (A) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the Administrative Agent
by such Bank and the Assignee; (B) such Bank and its Assignee shall have
delivered to the Company and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit E ("Assignment and Acceptance") together
with any Note or Notes subject to such assignment; and (C) the assignor
Bank or Assignee has paid to the Administrative Agent a processing fee in
the amount of $3,500.00.
(b) From and after the date that the Administrative Agent
notifies the assignor Bank that it has received (and provided its consent
with respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Bank under the Loan Documents, and (ii) the
assignor Bank shall, to the extent that rights and obligations hereunder
and under the other Loan Documents have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Administrative Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee, (and provided that it
consents to such assignment in accordance with subsection 10.08(a)), the
Company shall, upon request, execute and deliver to the Administrative
Agent, new Notes evidencing such Assignee's assigned Loans and Commitment
and, if the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Notes in the principal amount of the Loans retained
by the assignor Bank (such Notes to be in exchange for, but not in payment
of, the Notes held by such Bank). Upon the execution of such Notes by the
Company, the Assignee and the assignor Bank shall surrender to the Company
the old Notes in substitution of which the new Notes were executed.
Immediately upon each Assignee's making its processing fee payment under
the Assignment and Acceptance, this Agreement shall be deemed to be amended
to the extent, but only to the extent, necessary to reflect the addition of
the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loans, the Commitment of that Bank and the
other interests of that Bank (the "originating Bank") hereunder and under
the other Loan Documents; provided, however, that (i) the originating
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of
such obligations, (iii) the Company and the Agent shall continue to deal
solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and the
other Loan Documents, and (iv) no Bank shall transfer or grant any
participating interest under which the Participant has rights to approve
any amendment to, or any consent or waiver with respect to, this Agreement
or any other Loan Document, except to the extent such amendment, consent or
waiver would require unanimous consent of the Banks as described in the
first proviso to Section 10.01. In the case of any such participation, the
Participant shall be entitled to the benefit of Sections 3.01, 3.03 and
10.05 as though it were also a Bank hereunder, and, if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note
held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR 203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in
any manner permitted under applicable law.
10.09 Confidentiality. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care
to maintain the confidentiality of all information identified as
"confidential" or "secret" by the Company and provided to it by the
Company or any Subsidiary, or by the Administrative Agent on the Company's
or such Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business
now or hereafter existing or contemplated with the Company or any
Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by
the Bank, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not
bound by a confidentiality agreement with the Company known to the Bank;
provided, however, that any Bank may disclose such information (A) at the
request or pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an examination of such Bank
by any such authority; (B) pursuant to subpoena or other court process;
(C) when required to do so in accordance with the provisions of any
applicable Requirement of Law; (D) to the extent reasonably required in
connection with any litigation or proceeding to which either Agent, any
Bank or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder
or under any other Loan Document; (F) to such Bank's independent auditors
and other professional advisors; (G) to any Participant or Assignee, actual
or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Banks
hereunder; (H) as to any Bank or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is
deemed party with such Bank or such Affiliate; and (I) to its Affiliates.
10.10 Set-off. In addition to any rights and remedies of the
Banks provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the
Company to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final)
at any time held by, and other indebtedness at any time owing by, such Bank
to or for the credit or the account of the Company against any and all
Obligations owing to such Bank, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Bank shall have made demand
under this Agreement or any Loan Document and although such Obligations may
be contingent or unmatured. Each Bank agrees promptly to notify the
Company and the Administrative Agent after any such set-off and application
made by such Bank; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
10.11 Interest. It is the intention of the parties hereto to
comply strictly with applicable usury laws, if any; accordingly,
notwithstanding any provision to the contrary in this Agreement, the Notes
or in any of the other Loan Documents securing the payment hereof or
otherwise relating hereto, in no event shall this Agreement, the Notes or
such other Loan Documents require or permit the payment, charging, taking,
reserving, or receiving of any sums constituting interest under applicable
laws which exceed the maximum nonusurious amount permitted by such laws.
If any such excess interest is contracted for, charged, taken, reserved, or
received in connection with the Loans or in any of the Loan Documents
securing the payment hereof or otherwise relating hereto, or in any
communication by the Agents or the Banks or any other person to the Company
or any other person, or in the event all or part of the principal or
interest thereof shall be prepaid or accelerated, so that under any of such
circumstances or under any other circumstance whatsoever the amount of
interest contracted for, charged, taken, reserved, or received on the
amount of principal actually outstanding from time to time under the Notes
shall exceed the maximum nonusurious amount of interest permitted by
applicable usury laws, then in any such event it is agreed as follows: (i)
the provisions of this paragraph shall govern and control, (ii) neither the
Company nor any other person or entity now or hereafter liable for payment
of the Obligations shall be obligated to pay the amount of such interest to
the extent such interest is in excess of the maximum amount of interest
permitted by applicable usury laws, (iii) any such excess which is or has
been received notwithstanding this paragraph shall be credited against the
then unpaid principal balance of the Loans, or, if no principal balance is
then outstanding, refunded to the Company, and (iv) the provisions of this
Agreement and the other Loan Documents, and any communication to the
Company shall immediately be deemed reformed and such excess interest
reduced, without the necessity of executing any other document, to the
maximum lawful rate allowed under applicable laws as now or hereafter
construed by courts having jurisdiction hereof or thereof. Without
limiting the foregoing, all calculations of the rate of interest contracted
for, charged, taken, reserved, or received in connection with this
Agreement which are made for the purpose of determining whether such rate
exceeds the maximum nonusurious rate shall be made by amortizing,
prorating, allocating and spreading during the period of the full term of
the Loans, including all prior and subsequent renewals and extensions, all
interest at any time contracted for, charged, taken, reserved, or received.
The terms of this paragraph shall be deemed to be incorporated in every
document and communication relating to the Loans or any other Loan
Document.
10.12 Notification of Addresses, Lending Offices, Etc. Each Bank
shall notify the Administrative Agent in writing of any changes in the
address to which notices to the Bank should be directed, of addresses of
any Lending Office, of payment instructions in respect of all payments to
be made to it hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
10.13 Counterparts. This Agreement may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed
an original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
10.15 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Company, the
Banks, the Agents and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan
Documents.
10.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE
BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY,
THE AGENTS AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
COMPANY, THE AGENTS AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. THE COMPANY HEREBY IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS CT CORPORATION WITH OFFICES ON THE DATE HEREOF AT
0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND
AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN
RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING.
IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE
AVAILABLE TO ACT AS SUCH, THE COMPANY AGREES TO DESIGNATE A NEW DESIGNEE,
APPOINTEE AND AGENT IN NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS
PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE COMPANY FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SCHEDULE
10.02, SUCH SERVICE TO BECOME EFFECTIVE TEN DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF EITHER AGENT OR ANY BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR TO OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION. THE COMPANY, THE AGENTS AND THE BANKS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY
ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
10.17 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENTS
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE COMPANY, THE BANKS AND THE AGENTS EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
Company, the Banks and the Agents, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
THIS WRITTEN LOAN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
DEEPWATER DRILLING II L.L.C.
By:
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By:
Xxxxxx Xxx
Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By:
Xxxxxx Xxx
Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH, as
Documentation Agent and as a
Bank
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH, as a Bank
By:
Name:
Title:
SCHEDULE 1.01
DEFINITIONS
1. As used in this Credit Agreement, the following terms have the
following meanings:
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting securities,
membership interests, by contract, or otherwise.
"Administrative Agent" means BofA in its capacity as agent for
the Banks hereunder, and any successor agent arising under Section 9.09.
"Agent-Related Persons" means BofA, NatWest Bank and any
successor agent arising under Section 9.09, together with their respective
Affiliates (including the Arrangers), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Administrative Agent's Payment Office" means the address for
payments set forth on Schedule 10.02 or such other address as the
Administrative Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means (i) with respect to Base Rate Loans,
0.00%; and (ii) with respect to Offshore Rate Loans, 0.35%.
"Arrangers" means BancAmerica XXXXXXXXX XXXXXXXX, and NatWest
Markets (each an "Arranger").
"Assignee" has the meaning specified in subsection 10.08(a).
"Attorney Costs" means and includes all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel.
"Bank" means the institutions specified in the introductory
clause hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C. 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate." (The "reference rate" is a
rate set by BofA based upon various factors including BofA's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate.) Any change in the reference rate announced
by BofA shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Company on the same day by the Banks under
Article II, and, other than in the case of Base Rate Loans, having the same
Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03.
"BRS" means BancAmerica XXXXXXXXX XXXXXXXX.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"Change of Control (Company)" means the date upon which (i)
Conoco Development II Inc. ("CDII") shall cease to own, free and clear of
all Liens (other than Liens granted to the Company and RB Deepwater
Exploration II ("RBII") pursuant to Section 5.6 of the Limited Liability
Company Agreement), at least 40% of the equity in the Company, or (ii) RB
Deepwater Exploration II ("RBII") shall cease to own, free and clear of all
Liens (other than Liens granted to the Company and CDII pursuant to Section
5.6 of the Limited Liability Company Agreement), all the equity interest in
the Company not owned by Conoco; or (iii) R&B shall cease to own, free and
clear of all Liens, directly or indirectly, all of the equity interests in
RBII, or (iv) CDII shall cease to be an Affiliate of Conoco; or (v) CDII
shall cease to have at least fifty percent (50%) management control of the
Company.
"Change of Control (Conoco)" means (a) such time as E. I. du Pont
de Nemours and Company ("DuPont") shall not own directly or indirectly more
than fifty percent (50%) of the beneficial ownership interests in, and the
voting stock of, Conoco, or (b) a sale of all or substantially all of the
assets of Conoco and its Subsidiaries taken as a whole to any "person" or
"group" within the meaning of Section 13(d)(3) and Section 14(d)(2) of the
Securities and Exchange Act of 1934; or (c) the liquidation or dissolution
of Conoco.
"Change of Control Trigger Event (Conoco)" means the occurrence
of a Change of Control (Conoco) unless (a) the Rating of Conoco (or its
Parent Company as defined in this paragraph) is not less than A2 from
Xxxxx'x Investors Service, Inc. ("Moody's") and not less than A from
Standard & Poor's Corporation ("S&P"), or (b) in the event that Conoco is
merged into another corporation organized under the laws of a state in the
United States (a "Domestic Corporation") or a Domestic Corporation acquires
all or substantially all of the assets of Conoco, and such Domestic
Corporation ("acquiror") has a Rating of not less than A2 from Moody's and
not less than A from S&P, provided that the acquiror assumes Conoco's
obligations under the Guaranty Agreement executed by it pursuant to an
assumption agreement reasonably satisfactory to the Majority Banks and
delivers an opinion of counsel in form reasonably satisfactory to the
Majority Banks in connection therewith. As used in this definition,
"Parent Company" means a Domestic Corporation that owns more than fifty
percent (50%) or more of the beneficial interests in, and the voting stock
of, Conoco.
"Closing Date" means the date on which all conditions precedent
set forth in Section 4.01 are satisfied or waived by all Banks (or, in the
case of subsection 4.01(e), waived by the Person entitled to receive such
payment).
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in
Section 2.01.
"Compliance Certificate" means a certificate substantially in the
form of Exhibit C.
"Conoco" means Conoco Inc., its successors and assigns.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of that Person
(i) to purchase, repurchase or otherwise acquire such primary obligations
or any security therefor, (ii) to advance or provide funds for the payment
or discharge of any such primary obligation, or to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered, or (d) in
respect of any Swap Contract. The amount of any Contingent Obligation
shall, in the case of Guaranty Obligations, be deemed equal to the stated
or determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, and in the
case of other Contingent Obligations other than in respect of Swap
Contracts, shall be equal to the maximum reasonably anticipated liability
in respect thereof and, in the case of Contingent Obligations in respect of
Swap Contracts, shall be equal to the Swap Termination Value.
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Loans of one Type to another Type,
or (b) continues as Loans of the same Type, but with a new Interest Period,
Loans having Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the giving
of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Drillship" means that certain double-hulled 721-foot long
deepwater drillship under construction (as of the Closing Date) for the
Company by Samsung Heavy Industries Co., Ltd.
"Eligible Assignee" means (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (c) a Person
that is primarily engaged in the business of commercial banking and that is
(i) a Subsidiary of a Bank, (ii) a Subsidiary of a Person of which a Bank
is a Subsidiary, or (iii) a Person of which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental,
placement, spills, leaks, discharges, emissions or releases) of any
Hazardous Material at, in, or from property, whether or not owned by the
Company.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.09(a).
"FRB" means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including, without limitation, net income taxes and
franchise taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to Section
3.01.
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" means each of Reading & Xxxxx Corporation, Conoco
Inc., and the R&B Subsidiary Guarantors.
.
"Guaranty Agreement" means each Guaranty Agreement substantially
in the form of Exhibit G-1 or Exhibit G-2 hereto, executed by a Guarantor
in favor of the Agents and the Banks, as the same may be amended,
supplemented, or otherwise modified from time to time.
"Guaranty Obligation" has the meaning specified in the definition
of "Contingent Obligation."
"Hazardous Materials" means all those substances that are
regulated by, or which may form the basis of liability under, any
Environmental Law, including any substance identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (c) all reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of
the seller or bank under such agreement in the event of default are limited
to repossession or sale of such property); (f) all obligations with respect
to capital leases; (g) all net obligations with respect to Swap Contracts,
(h) all indebtedness referred to in clauses (a) through (g) above secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness; and (i) all Guaranty Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through
(h) above. For all purposes of this Agreement, the Indebtedness of any
Person shall include all recourse Indebtedness of any partnership or joint
venture or limited liability company in which such Person is a general
partner or a joint venturer or a member.
"Indemnified Liabilities" has the meaning specified in Section
10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in subsection
6.01(a).
"Initial Borrowing Date" means the date of the initial Borrowing
hereunder.
"Insolvency Proceeding" means, with respect to any Person,
(a) any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-
up or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under U.S. Federal, state
or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Loan, the last Business Day of each calendar
quarter and each date such Loan is converted into another Type of Loan,
provided, however, that, if any Interest Period for an Offshore Rate Loan
exceeds three months, the date that falls three months after the beginning
of such Interest Period and after each Interest Payment Date thereafter is
also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two, three
or six months thereafter as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation; provided that: (i) if any
Interest Period would otherwise end on a day that is not a Business Day,
that Interest Period shall be extended to the following Business Day
unless, in the case of an Offshore Rate Loan, the result of such extension
would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and (iii) no Interest Period for any
Revolving Loan shall extend beyond the Revolving Termination Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal entity)
now or hereafter formed by the Company or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with such
Person.
"Lending Office" means, as to any Bank, the office or offices of
such Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 10.02, or such
other office or offices as the Bank may from time to time notify the
Company and the Administrative Agent.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of any
kind or nature whatsoever in respect of any property (including those
created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a capital lease,
any financing lease having substantially the same economic effect as any of
the foregoing, or the filing of any financing statement naming the owner of
the asset to which such lien relates as debtor, under the Uniform
Commercial Code or any comparable law) and any contingent or other
agreement to provide any of the foregoing, but not including the interest
of a lessor under an operating lease.
"Limited Liability Company Agreement" means the Limited Liability
Company Agreement pursuant to which the Company was created, between Conoco
Development II Inc. and RB Deepwater Exploration II Inc. dated April 30,
1997, as the same may be amended from time to time; provided, however, that
the consent of the Majority Banks shall be required prior to the making of
any amendment that, in the opinion of the Majority Banks, could be
construed to have a material adverse effect on the Banks.
"LLC Agreement Amendment Event" means the Limited Liability
Company Agreement is amended without the prior written consent of the
Administrative Agent (acting upon direction of the Majority Banks) if, in
the opinion of the Majority Banks, such amendment could be construed to
have a material adverse effect on the Banks.
"Loan" means an extension of credit by a Bank to the Company
under Article II, and may be a Base Rate Loan or an Offshore Rate Loan
(each, a "Type" of Loan).
"Loan Documents" means this Agreement, any Notes, the Fee Letter,
and all other documents delivered to either Agent or any Bank in connection
with the transactions contemplated by this Agreement.
"Majority Banks" means at any time Banks then holding at least
51% of the then aggregate unpaid principal amount of the Loans, or, if no
such principal amount is then outstanding, Banks then having at least 51%
of the Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of (x) the Company, (y)
Conoco or (z) R&B and its subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company or any Guarantor to perform under
any Loan Document and to avoid any Event of Default; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability against the Company or any Guarantor of any Loan Document.
"NatWest Bank" means National Westminster Bank Plc.
"Note" means a promissory note executed by the Company in favor
of a Bank pursuant to subsection 2.02(b), in substantially the form of
Exhibit F.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing by
the Company to any Bank, either Agent, or any Indemnified Person, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum determined by the Administrative Agent to be the offered
rate per annum at which deposits in Dollars appear on the Telerate Page
3750 (or any successor page) as of 11:00 a.m. (London time), two (2)
Business Days prior to (and for value on) the commencement of such Interest
Period in an amount approximately equal to the amount of the Offshore Rate
Loans of the Banks during such Interest Period and for a period of time
comparable to such Interest Period, or in the event such offered rate is
not available from the Telerate Page, then the Offshore Rate shall be equal
to the rate per annum determined by the Administrative Agent to be the
average (rounded upwards to the next higher 1/16 of 1%) of the respective
rates per annum shown on Xxxxxx'x Monitor Money Rates Service "LIBO" page
at which deposits in dollars are offered in the London Interbank
Eurocurrency Market at or about 11:00 a.m. (London time), two (2) Business
Days prior to (and for value on) the commencement of an Interest Period in
an amount approximately equal to the amount of the Offshore Rate Loans of
the Banks during such Interest Period and for a period of time comparable
to such Interest Period, and in the event neither such Telerate nor such
Xxxxxx'x rate is available from such Telerate Page or such Xxxxxx'x
Service, then the Offshore Rate shall be equal to the rate of interest per
annum determined by the Administrative Agent to be the rate at which dollar
deposits for such Interest Period and in an amount approximately equal to
the amount of the Offshore Rate Loan of BofA during such Interest Period
would be offered by BofA's applicable Lending Office to major banks in the
London eurodollar market at or about 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.
"Offshore Rate Loan" means a Loan that bears interest based on
the Offshore Rate.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and all
applicable resolutions of the board of directors (or any committee thereof)
of such corporation.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 10.08(d).
"Pension Plan" means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA which the Company sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Swap Obligations" means an agreement providing for an
interest rate swap. .
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company sponsors or maintains or to which the Company
makes, is making, or is obligated to make contributions and includes any
Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Bank's Commitment divided by the combined
Commitments of all Banks.
"Rating" means the rating assigned by the applicable rating
agency to senior unsecured (non-credit enhanced) long-term debt.
"R&B" means Reading & Xxxxx Corporation, its successors and
assigns.
"R&B Credit Facility means (a) the credit arrangements evidenced
by the Amended and Restated Credit Agreement dated as of July 3, 1997 among
Reading & Xxxxx Corporation, Reading & Xxxxx Drilling Co. and the
Documentation Agents, and the Administrative Agent, Arranger and Security
Trustee therein named, as may be further amended with the consent of the
Majority Banks (if such consent is required pursuant to the terms of the
Guaranty Agreement executed by R&B and the R&B Subsidiary Guarantors), and
(b) any credit arrangement or Indebtedness entered into or incurred in
renewal, extension, replacement or restatement thereof.
"R&B Subsidiary Guarantors" means Reading & Xxxxx Drilling Co.,
Reading & Xxxxx Exploration Co., Reading & Xxxxx (A) Pty. Ltd., Reading and
Xxxxx Borneo Drilling Co., Ltd., Reading & Xxxxx Offshore, Limited and RB
Rig Corporation and each other direct and indirect subsidiaries of R&B that
delivers a Guaranty Agreement pursuant to this Agreement.
"Replacement Bank" has the meaning specified in Section 3.08.
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator or
of a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"Responsible Officer" means (i) with respect to the Company, the
manager of the Company or a Representative (as defined in the Limited
Liability Company Agreement); (ii) with respect to Conoco, Conoco's
assistant treasurer or vice president - finance; or (iii) with respect to
R&B and the R&B Subsidiary Guarantors, the chief financial officer of R&B
or the controller of R&B.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Termination Date" means the earlier to occur of: (a)
November 9, 1998; and (b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Solvent" means, as to any Person at any time, that (a) the fair
value of the property of such Person is greater than or equal to the amount
of such Person's liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in
the alternative, for purposes of the New York Uniform Fraudulent Transfer
Act; (b) the present fair saleable value of the property of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured;
(c) such Person is able to realize upon its property and pay its debts and
other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such
Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute unreasonably small capital.
"Subsidiary" or "subsidiary" of a Person means any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which more than 50% of the voting stock, membership
interests or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person,
or one or more of the Subsidiaries of the Person, or a combination thereof.
Unless the context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company. The Company shall not
be considered a "Subsidiary" or "subsidiary" of R&B or Conoco for purposes
of this Agreement or the other Loan Documents.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside
bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or xxxx option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for any
date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a)
the amount(s) determined as the xxxx-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Bank.)
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, respectively, taxes imposed on or measured by
its net income or net profits by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the Agent, as the
case may be, is organized or maintains a Lending Office.
"Type" has the meaning specified in the definition of "Loan."
"United States" and "U.S." each means the United States of
America.
"Wholly-Owned Subsidiary" means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the capital
stock of every other class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.
2. Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.
(c) (i) the term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced; (ii) the term "including" is not limiting and
means "including without limitation"; (iii) In the computation of periods
of time from a specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including"; and (iv) the
term "property" includes any kind of property or asset, real, personal or
mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of
this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms.
Unless otherwise expressly provided, any reference to any action of the
Agents or the Banks by way of consent, approval or waiver shall be deemed
modified by the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agents, the
Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Agents
merely because of the Agents' or Banks' involvement in their preparation.
3. Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
Bank of America $87,500,000 50%
National
Trust and Savings
Association
National Westminster $87,500,000 50%
Bank Plc
TOTAL $175,000,000 100%
SCHEDULE 5.16
SUBSIDIARIES AND MINORITY INTERESTS
None
SCHEDULE 7.01
LIENS
None
SCHEDULE 7.05
INDEBTEDNESS
Indebtedness to RBII and CDII in the aggregate amount of $77,250,900 as of
September 30, 1997. Such Indebtedness shall be repaid with the proceeds of
the Initial Borrowing.
SCHEDULE 10.02
OFFSHORE AND DOMESTIC LENDING OFFICES
ADDRESSES FOR NOTICES
COMPANY
Address for Notices:
Deepwater Drilling II L.L.C.
000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xx. Xxx X. Xxxxx
With a copy to:
Xx. Xxxxxx Xxxxxxxx
Conoco Inc.
000 X. Xxxxx Xxxxxxx, Xxxxx XX0000
Xxxxxxx, Xxxxx 00000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
Address for Notices (including
Notice of Borrowing):
Bank of America National Trust
and Savings Association
Agency Administration Services #5596
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Bank of America National Trust
and Savings Association
Three Xxxxx Center
Suite 4550
Houston, TX 77002
Attn: Xxxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Administrative Agent's Payment
Office:
Bank of America National Trust
and Savings Association
Agency Administration Services #5596
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABA No.: 000000000
Ref: Deepwater Drilling
Acct. No.: 00000-00000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
Address of Domestic and
Offshore Lending Office:
Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Bank of America National Trust
and Savings Association
Three Xxxxx Center
Suite 4550
Houston, TX 77002
Attn: Xxxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL WESTMINSTER BANK PLC,
as a Bank
Address of Domestic and
Offshore Lending
Office and Address for Notices:
National Westminster Bank Plc
New York Branch
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxx Xxxxxx
Vice President & Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
NatWest Markets
North American Energy
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
