================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO ______.
COMMISSION FILE NUMBER 333-75899
______________________
TRANSOCEAN INC.
(Exact name of registrant as specified in its charter)
______________________
CAYMAN ISLANDS 66-0582307
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4 GREENWAY PLAZA
HOUSTON, TEXAS 77046
(Address of principal executive offices) (Zip Code)
Registrants' telephone number, including area code: (713) 232-7500
______________________
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
------- -------
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act). Yes X No
------- -------
As of April 30, 2003, 319,773,020 ordinary shares, par value $0.01 per
share, were outstanding.
================================================================================
TRANSOCEAN INC.
INDEX TO FORM 10-Q
QUARTER ENDED MARCH 31, 2003
Page
----
PART I - FINANCIAL INFORMATION
- ----------------------------------
ITEM 1. Financial Statements (Unaudited)
Condensed Consolidated Statements of Operations
Three Months Ended March 31, 2003 and 2002 . . . . . . . 2
Condensed Consolidated Statements of Comprehensive Income (Loss)
Three Months Ended March 31, 2003 and 2002 . . . . . . . 3
Condensed Consolidated Balance Sheets
March 31, 2003 and December 31, 2002. . . . . . . . . . . 4
Condensed Consolidated Statements of Cash Flows
Three Months Ended March 31, 2003 and 2002 . . . . . . . 5
Notes to Condensed Consolidated Financial Statements. . . . . 6
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations. . . . . . . . . . . . . .18
ITEM 3. Quantitative and Qualitative Disclosures about Market Risk. .35
ITEM 4. Controls and Procedures . . . . . . . . . . . . . . . . . .36
PART II - OTHER INFORMATION
- -------------------------------
ITEM 1. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . .37
ITEM 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . .38
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The condensed consolidated financial statements of Transocean Inc. and its
consolidated subsidiaries (the "Company") included herein have been prepared,
without audit, pursuant to the rules and regulations of the Securities and
Exchange Commission. Certain information and notes normally included in
financial statements prepared in accordance with accounting principles generally
accepted in the United States have been condensed or omitted pursuant to such
rules and regulations. These financial statements should be read in conjunction
with the audited consolidated financial statements and the notes thereto
included in the Company's Annual Report on Form 10-K for the year ended December
31, 2002.
1
TRANSOCEAN INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share data)
(Unaudited)
Three Months Ended March 31,
------------------------------
2003 2002
-------------- --------------
Operating Revenues
Contract drilling revenues $ 589.6 $ 667.9
Client reimbursable revenues 26.4 -
- ------------------------------------------------------------------------ -------------- --------------
616.0 667.9
- ------------------------------------------------------------------------ -------------- --------------
Costs and Expenses
Operating and maintenance 374.1 381.0
Depreciation 126.8 125.6
General and administrative 13.9 19.8
Impairment loss on long-lived assets 1.0 1.1
Gain from sale of assets, net (1.4) (1.9)
- ------------------------------------------------------------------------ -------------- --------------
514.4 525.6
- ------------------------------------------------------------------------ -------------- --------------
Operating Income 101.6 142.3
Other Income (Expense), net
Equity in earnings of joint ventures 3.6 1.9
Interest income 6.9 4.2
Interest expense (52.6) (55.9)
Other, net (0.6) (0.7)
- ------------------------------------------------------------------------ -------------- --------------
(42.7) (50.5)
- ------------------------------------------------------------------------ -------------- --------------
Income Before Income Taxes, Minority Interest and
Cumulative Effect of a Change in Accounting Principle 58.9 91.8
Income Tax Expense 11.8 13.8
Minority Interest (0.1) 0.7
- ------------------------------------------------------------------------ -------------- --------------
Net Income Before Cumulative Effect of a Change in Accounting Principle 47.2 77.3
Cumulative Effect of a Change in Accounting Principle - (1,363.7)
- ------------------------------------------------------------------------ -------------- --------------
Net Income (Loss) $ 47.2 $ (1,286.4)
======================================================================== ============== ==============
Basic Earnings (Loss) Per Share
Income Before Cumulative Effect of a Change in Accounting Principle $ 0.15 $ 0.24
Loss on Cumulative Effect of a Change in Accounting Principle - (4.27)
- ------------------------------------------------------------------------ -------------- --------------
Net Income (Loss) $ 0.15 $ (4.03)
======================================================================== ============== ==============
Diluted Earnings (Loss) Per Share
Income Before Cumulative Effect of a Change in Accounting Principle $ 0.15 $ 0.24
Loss on Cumulative Effect of a Change in Accounting Principle - (4.22)
- ------------------------------------------------------------------------ -------------- --------------
Net Income (Loss) $ 0.15 $ (3.98)
======================================================================== ============== ==============
Weighted Average Shares Outstanding
Basic 319.7 319.1
- ------------------------------------------------------------------------ -------------- --------------
Diluted 321.6 323.1
- ------------------------------------------------------------------------ -------------- --------------
Dividends Paid per Share $ - $ 0.03
- ------------------------------------------------------------------------ -------------- --------------
See accompanying notes.
2
TRANSOCEAN INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(In millions)
(Unaudited)
Three Months Ended March 31,
----------------------------
2003 2002
-------------- ------------
Net income (loss) $ 47.2 $ (1,286.4)
- -----------------------------------------------------------------------------------------------------
Other comprehensive income (loss), net of tax
Amortization of gain on terminated interest rate swaps - (0.1)
Change in unrealized loss on securities available for sale - 0.1
Change in share of unrealized loss in unconsolidated joint venture's
interest rate swaps (0.3) 3.1
Minimum pension liability adjustments 0.7 -
- -----------------------------------------------------------------------------------------------------
Other comprehensive income 0.4 3.1
- -----------------------------------------------------------------------------------------------------
Total comprehensive income (loss) $ 47.6 $ (1,283.3)
=====================================================================================================
See accompanying notes.
3
TRANSOCEAN INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In millions, except share data)
March 31, December 31,
2003 2002
----------- --------------
(Unaudited)
ASSETS
Cash and Cash Equivalents $ 1,520.4 $ 1,214.2
Accounts Receivable, net of allowance for doubtful accounts of $17.3
and $20.8 at March 31, 2003 and December 31, 2002, respectively 481.7 499.3
Materials and Supplies, net of allowance for obsolescence of $18.6
at March 31, 2003 and December 31, 2002 157.1 155.8
Deferred Income Taxes 17.1 21.9
Other Current Assets 53.7 20.5
- --------------------------------------------------------------------------------------------------
Total Current Assets 2,230.0 1,911.7
- --------------------------------------------------------------------------------------------------
Property and Equipment 10,201.6 10,198.0
Less Accumulated Depreciation 2,290.2 2,168.2
- --------------------------------------------------------------------------------------------------
Property and Equipment, net 7,911.4 8,029.8
- --------------------------------------------------------------------------------------------------
Goodwill, net 2,190.6 2,218.2
Investments in and Advances to Joint Ventures 110.7 108.5
Deferred Income Taxes 26.2 26.2
Other Assets 193.5 370.7
- --------------------------------------------------------------------------------------------------
Total Assets $ 12,662.4 $ 12,665.1
==================================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts Payable $ 132.6 $ 134.1
Accrued Income Taxes 18.8 59.5
Debt Due Within One Year 1,051.7 1,048.1
Other Current Liabilities 295.2 262.2
- --------------------------------------------------------------------------------------------------
Total Current Liabilities 1,498.3 1,503.9
- --------------------------------------------------------------------------------------------------
Long-Term Debt 3,568.1 3,629.9
Deferred Income Taxes 102.4 107.2
Other Long-Term Liabilities 291.9 282.7
- --------------------------------------------------------------------------------------------------
Total Long-Term Liabilities 3,962.4 4,019.8
- --------------------------------------------------------------------------------------------------
Commitments and Contingencies
Preference Shares, $0.10 par value; 50,000,000 shares authorized,
none issued and outstanding - -
Ordinary Shares, $0.01 par value; 800,000,000 shares authorized,
319,768,212 and 319,219,072 shares issued and outstanding at
March 31, 2003 and December 31, 2002, respectively 3.2 3.2
Additional Paid-in Capital 10,635.8 10,623.1
Accumulated Other Comprehensive Loss (31.1) (31.5)
Retained Deficit (3,406.2) (3,453.4)
- --------------------------------------------------------------------------------------------------
Total Shareholders' Equity 7,201.7 7,141.4
- --------------------------------------------------------------------------------------------------
Total Liabilities and Shareholders' Equity $ 12,662.4 $ 12,665.1
==================================================================================================
See accompanying notes.
4
TRANSOCEAN INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
(Unaudited)
Three Months Ended March 31,
----------------------------
2003 2002
------------- -------------
Cash Flows from Operating Activities
Net income (loss) $ 47.2 $ (1286.4)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Depreciation 126.8 125.6
Impairment loss on goodwill - 1363.7
Stock-based compensation expense 1.5 0.2
Deferred income taxes 27.6 (23.3)
Equity in earnings of joint ventures (3.6) (1.9)
Net gain from disposal of assets (0.7) -
Impairment loss on long-lived assets 1.0 1.1
Amortization of debt-related discounts/premiums, fair value
adjustments and issue costs, net (1.8) 1.3
Deferred income, net 7.0 (5.4)
Deferred expenses, net (4.8) 7.4
Other, net 5.8 5.0
Changes in operating assets and liabilities
Accounts receivable 17.6 (8.9)
Accounts payable and other current liabilities 42.4 (4.6)
Income taxes receivable/payable, net (40.7) 15.8
Other current assets (34.5) (27.6)
- ------------------------------------------------------------------------------------------------
Net Cash Provided by Operating Activities 190.8 162.0
- ------------------------------------------------------------------------------------------------
Cash Flows from Investing Activities
Capital expenditures (24.4) (47.7)
Proceeds from disposal of assets, net 2.2 43.4
Joint ventures and other investments, net 1.4 (3.6)
- ------------------------------------------------------------------------------------------------
Net Cash Used in Investing Activities (20.8) (7.9)
- ------------------------------------------------------------------------------------------------
Cash Flows from Financing Activities
Repayments under commercial paper program - (326.4)
Repayments on other debt instruments (47.8) (85.0)
Cash from termination of interest rate swaps 173.5 -
Net proceeds from issuance of ordinary shares under
stock-based compensation plans 10.9 9.1
Dividends paid - (9.6)
Financing costs - (8.2)
Other, net (0.4) 0.7
- ------------------------------------------------------------------------------------------------
Net Cash Provided by (Used in) Financing Activities 136.2 (419.4)
- ------------------------------------------------------------------------------------------------
Net Increase (Decrease) in Cash and Cash Equivalents 306.2 (265.3)
- ------------------------------------------------------------------------------------------------
Cash and Cash Equivalents at Beginning of Period 1,214.2 853.4
- ------------------------------------------------------------------------------------------------
Cash and Cash Equivalents at End of Period $ 1,520.4 $ 588.1
================================================================================================
See accompanying notes.
5
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 - PRINCIPLES OF CONSOLIDATION
Transocean Inc. (together with its subsidiaries and predecessors, unless
the context requires otherwise, the "Company") is a leading international
provider of offshore and inland marine contract drilling services for oil and
gas wells. As of March 31, 2003, the Company owned, had partial ownership
interests in or operated more than 170 mobile offshore and barge drilling units.
The Company contracts its drilling rigs, related equipment and work crews
primarily on a dayrate basis to drill oil and gas wells.
Intercompany transactions and accounts have been eliminated. The equity
method of accounting is used for investments in joint ventures where the
Company's ownership is between 20 and 50 percent and for investments in joint
ventures owned more than 50 percent where the Company does not have control of
the joint venture. The cost method of accounting is used for investments in
joint ventures where the Company's ownership is less than 20 percent and the
Company does not have control of the joint venture.
NOTE 2 - GENERAL
BASIS OF CONSOLIDATION - The accompanying condensed consolidated financial
statements of the Company have been prepared without audit in accordance with
accounting principles generally accepted in the United States ("U.S.") for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X of the Securities and Exchange Commission. Accordingly,
pursuant to such rules and regulations, these financial statements do not
include all disclosures required by accounting principles generally accepted in
the U.S. for complete financial statements. Operating results for the three
month period ended March 31, 2003 are not necessarily indicative of the results
that may be expected for the year ending December 31, 2003 or for any future
period. The accompanying condensed consolidated financial statements and notes
thereto should be read in conjunction with the audited consolidated financial
statements and notes thereto included in the Company's Annual Report on Form
10-K for the year ended December 31, 2002.
ACCOUNTING ESTIMATES - The preparation of financial statements in
conformity with accounting principles generally accepted in the U.S. requires
management to make estimates and assumptions that affect the reported amounts of
assets, liabilities, revenues, expenses and disclosure of contingent assets and
liabilities. On an ongoing basis, the Company evaluates its estimates, including
those related to bad debts, materials and supplies obsolescence, investments,
intangible assets and goodwill, property and equipment and other long-lived
assets, income taxes, financing operations, workers' insurance, pensions and
other post-retirement and employment benefits and contingent liabilities. The
Company bases its estimates on historical experience and on various other
assumptions that are believed to be reasonable under the circumstances, the
results of which form the basis for making judgments about the carrying values
of assets and liabilities that are not readily apparent from other sources.
Actual results could differ from such estimates.
SUPPLEMENTARY CASH FLOW INFORMATION - Cash payments for interest and income
taxes, net, were $14.8 million and $24.3 million, respectively, for the three
months ended March 31, 2003 and $8.8 million and $21.3 million, respectively,
for the three months ended March 31, 2002.
GOODWILL - In accordance with the Financial Accounting Standards Board's
("FASB") Statement of Financial Accounting Standards ("SFAS") 142, Goodwill and
Other Intangible Assets, goodwill is tested for impairment at the reporting unit
level, which is defined as an operating segment or a component of an operating
segment that constitutes a business for which financial information is available
and is regularly reviewed by management. Management has determined that the
Company's reporting units are the same as its operating segments for the purpose
of allocating goodwill and the subsequent testing of goodwill for impairment.
Goodwill resulting from the merger transaction with Sedco Forex Holdings Limited
was allocated 100 percent to the Company's International and U.S. Floater
Contract Drilling Services segment. Goodwill resulting from the merger
transaction (the "R&B Falcon merger") with R&B Falcon Corporation ("R&B Falcon",
now known as "TODCO") was allocated to the Company's two reporting units,
International and U.S. Floater Contract Drilling Services and Gulf of Mexico
Shallow and Inland Water, at a ratio of
6
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
68 percent and 32 percent, respectively. The allocation was determined based on
the percentage of each reporting unit's assets at fair value to the total fair
value of assets acquired in the R&B Falcon merger. The fair value was determined
from a third party valuation.
During the first quarter of 2002, the Company implemented SFAS 142 and
performed the initial test of impairment of goodwill on its two reporting units.
The test was applied utilizing the estimated fair value of the reporting units
as of January 1, 2002 determined based on a combination of each reporting unit's
discounted cash flows and publicly traded company multiples and acquisition
multiples of comparable businesses. There was no goodwill impairment for the
International and U.S. Floater Contract Drilling Services reporting unit.
However, because of deterioration in market conditions that affected the Gulf of
Mexico Shallow and Inland Water business segment since the completion of the R&B
Falcon merger, a $1,363.7 million ($4.22 per diluted share) impairment of
goodwill was recognized as a cumulative effect of a change in accounting
principle in the first quarter of 2002.
During the fourth quarter of 2002, the Company performed its annual test of
goodwill impairment as of October 1. Due to a general decline in market
conditions, the Company recorded a non-cash impairment charge of $2,876.0
million ($9.01 per diluted share) of which $2,494.1 million and $381.9 million
related to the International and U.S. Floater Contract Drilling Services and
Gulf of Mexico Shallow and Inland Water reporting units, respectively.
The Company's goodwill balance, after giving effect to the goodwill
write-downs, was $2.2 billion as of March 31, 2003. The changes in the carrying
amount of goodwill as of March 31, 2003 are as follows (in millions):
Balance at Balance at
January 1, March 31,
2003 Other (a) 2003
----------- ------------ ---------
International and U.S. Floater Contract Drilling Services $ 2,218.2 $ (27.6) $2,190.6
_________________
(a) Represents favorable adjustments during 2003 of non-U.S. tax-related pre-acquisition
contingencies related to the R&B Falcon merger.
IMPAIRMENT OF OTHER LONG-LIVED ASSETS - The carrying value of long-lived
assets, principally property and equipment, is reviewed for potential impairment
when events or changes in circumstances indicate that the carrying amount of
such assets may not be recoverable. For property and equipment held for use, the
determination of recoverability is made based upon the estimated undiscounted
future net cash flows of the related asset or group of assets being evaluated.
Property and equipment held for sale are recorded at the lower of net book value
or net realizable value. See Note 6.
CAPITALIZED INTEREST - Interest costs for the construction and upgrade of
qualifying assets are capitalized. No interest was capitalized for the three
months ended March 31, 2003 and 2002.
INCOME TAXES - Income taxes have been provided based upon the tax laws and
rates in the countries in which operations are conducted and income is earned.
The income tax rates imposed by these taxing authorities vary substantially.
Taxable income may differ from pre-tax income for financial accounting purposes.
There is no expected relationship between the provision for income taxes and
income before income taxes because the countries have different taxation
regimes, which vary not only with respect to nominal rate but also in terms of
the availability of deductions, credits and other benefits. Variations also
arise because income earned and taxed in any particular country or countries may
fluctuate from period to period. These factors, combined with lower expected
financial results for the year, are expected to lead to a higher effective tax
rate.
7
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
COMPREHENSIVE INCOME - The components of accumulated other comprehensive
income (loss) as of March 31, 2003 and December 31, 2002 are as follows (in
millions):
Unrealized Other
Gain on Loss on Comprehensive
Terminated Available- Loss Related to Minimum Total Other
Interest Rate for-Sale Unconsolidated Pension Comprehensive
Swap Securities Joint Venture Liability Income (Loss)
--------------- ------------ ----------------- ----------- ---------------
Balance at December 31, 2002 $ 3.6 $ (0.6) $ (2.0) $ (32.5) $ (31.5)
Other comprehensive income (loss) - - (0.3) 0.7 0.4
--------------- ------------ ----------------- ----------- ---------------
Balance at March 31, 2003 $ 3.6 $ (0.6) $ (2.3) $ (31.8) $ (31.1)
=============== ============ ================= =========== ===============
SEGMENTS - The Company's operations are aggregated into two reportable
segments: (i) International and U.S. Floater Contract Drilling Services and (ii)
Gulf of Mexico Shallow and Inland Water. The Company provides services with
different types of drilling equipment in several geographic regions. The
location of the Company's operating assets and the allocation of resources to
build or upgrade drilling units is determined by the activities and needs of
clients. See Note 5.
INTERIM FINANCIAL INFORMATION - The condensed consolidated financial
statements reflect all adjustments, which are, in the opinion of management,
necessary for a fair statement of results of operations for the interim periods.
Such adjustments are considered to be of a normal recurring nature unless
otherwise identified.
STOCK-BASED COMPENSATION - Through December 31, 2002 and in accordance with
the provisions of SFAS 123, Accounting for Stock-Based Compensation, the Company
had elected to follow the Accounting Principles Board Opinion ("APB") 25,
Accounting for Stock Issued to Employees, and related interpretations in
accounting for its employee stock-based compensation plans. Effective January 1,
2003, the Company adopted the fair value method of accounting for stock-based
compensation using the prospective method of transition under SFAS 123.
8
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
If compensation expense for grants to employees under the incentive plan
and the stock purchase plan for the periods prior to December 31, 2002 were
recognized using the fair value method of accounting under SFAS 123 rather than
the intrinsic value method under APB 25, net income (loss) and earnings (loss)
per share would have been reduced to the pro forma amounts indicated below (in
millions, except per share data):
Three Months Ended
March 31,
------------------
2003 2002
------ ----------
Net Income (Loss) as Reported $47.2 $(1,286.4)
Add back: Stock-based compensation expense included in reported
net income (loss), net of related tax effects 1.2 0.2
Deduct: Total stock-based compensation expense determined under
fair value based method for all awards, net of related tax effects
Incentive Plan (4.6) (4.4)
Employee Stock Purchase Plan (0.9) (0.6)
------ ----------
Pro Forma net income (loss) $42.9 $(1,291.2)
====== ==========
Basic Earnings (Loss) Per Share
As Reported $0.15 $ (4.03)
Pro Forma 0.13 (4.05)
Diluted Earnings (Loss) Per Share
As Reported $0.15 $ (3.98)
Pro Forma 0.13 (4.00)
NEW ACCOUNTING PRONOUNCEMENTS - In January 2003, the FASB issued
Interpretation ("FIN") 46, Consolidation of Variable Interest Entities. FIN 46
requires companies with a variable interest in a variable interest entity to
apply this guidance to that entity as of the beginning of the first interim
period beginning after June 15, 2003 for existing interests and immediately for
new interests. The application of the guidance could result in the consolidation
of a variable interest entity. The Company is evaluating the impact of this
interpretation on its consolidated financial position and results of operations.
Effective January 2003, the Company implemented Emerging Issues Task Force
("EITF") Issue No. 99-19, Reporting Revenues Gross as a Principal versus Net as
an Agent. As a result of the implementation of the EITF, the costs incurred and
charged to the Company's clients on a reimbursable basis are recognized as
operating and maintenance expense. In addition, the amounts billed to the
Company's clients associated with these reimbursable costs are being recognized
as client reimbursable revenue. Management expects client reimbursable revenues
and operating and maintenance expense to be between $80 million and $100 million
as a result of the implementation of EITF 99-19. The change in accounting
principle will have no effect on the Company's results of operations or
consolidated financial position. Prior periods have not been reclassified, as
these amounts were not material.
RECLASSIFICATIONS - Certain reclassifications have been made to prior
period amounts to conform with the current period's presentation.
9
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
NOTE 3 - DEBT
Debt, net of unamortized discounts, premiums and fair value adjustments, is
comprised of the following (in millions):
March 31, December 31,
2003 2002
---------- -------------
6.5% Senior Notes, due April 2003(a) $ 239.5 $ 239.7
Zero Coupon Convertible Debentures, due May 2020 (put options exercisable
May 2003, May 2008 and May 2013) (a)(c) 531.0 527.2
9.125% Senior Notes, due December 2003 88.8 89.5
Amortizing Term Loan Agreement - Final Maturity December 2004 262.5 300.0
6.75% Senior Notes, due April 2005 (b) 367.5 371.8
7.31% Nautilus Class A1 Amortizing Notes - Final Maturity May 2005 94.8 104.7
9.41% Nautilus Class A2 Notes, due May 2005(a) 51.5 51.7
6.95% Senior Notes, due April 2008 (b) 272.6 277.2
9.5% Senior Notes, due December 2008 (b) 365.5 371.8
6.625% Notes, due April 2011 (b) 805.5 803.7
7.375% Senior Notes, due April 2018 250.5 250.5
1.5% Convertible Debentures, due May 2021 (put options exercisable May 2006,
May 2011 and May 2016) 400.0 400.0
8% Debentures, due April 2027 198.0 198.0
7.45% Notes, due April 2027 (put options exercisable April 2007) 94.7 94.6
7.5% Notes, due April 2031 597.4 597.4
Other - 0.2
---------- -------------
Total Debt 4,619.8 4,678.0
Less Debt Due Within One Year (c) 1,051.7 1,048.1
---------- -------------
Total Long-Term Debt $ 3,568.1 $ 3,629.9
========== =============
_______________
(a) See Note 11.
(b) At December 31, 2002, the Company was a party to interest rate swap
agreements with respect to these debt instruments. See Note 4.
(c) The Zero Coupon Convertible Debentures are classified as debt due within
one year since the put options can be exercised in May 2003.
10
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
The scheduled maturity of the face value of the Company's debt assumes the
bondholders exercise their options to require the Company to repurchase the Zero
Coupon Convertible Debentures, 1.5% Convertible Debentures and 7.45% Notes in
May 2003, May 2006 and April 2007, respectively, and is as follows (in
millions):
Twelve
Months
Ending
March 31,
-------------
2004 $ 1,062.6
2005 158.0
2006 407.9
2007 400.0
2008 100.0
Thereafter 2,300.0
-------------
Total $ 4,428.5
=============
Commercial Paper Program - The Company has two revolving credit agreements,
described below, which provide liquidity for commercial paper borrowings. At
March 31, 2003, no amounts were outstanding under the Commercial Paper Program.
Revolving Credit Agreements - The Company is a party to two revolving
credit agreements, a $550.0 million five-year revolving credit agreement dated
December 29, 2000 and a $250.0 million 364-day revolving credit agreement dated
December 26, 2002. In addition to providing for commercial paper borrowings,
these credit lines may also be drawn on directly. At March 31, 2003, no amounts
were outstanding under either of these revolving credit agreements.
Term Loan Agreement - The Company is a party to an amortizing unsecured
five-year term loan agreement dated December 16, 1999. Amounts outstanding under
the Term Loan Agreement bear interest, at the Company's option, at a base rate
or London Interbank Offered Rate ("LIBOR") plus a margin that varies depending
on the Company's senior unsecured public debt rating. At March 31, 2003, the
margin was 0.70 percent per annum. The debt began to amortize in March 2002, at
a rate of $25.0 million per quarter in 2002. In 2003 and 2004, the debt
amortizes at a rate of $37.5 million per quarter. As of March 31, 2003, $262.5
million was outstanding under this agreement.
Exchange Offer - In March 2002, the Company completed exchange offers and
consent solicitations for TODCO's 6.5%, 6.75%, 6.95%, 7.375%, 9.125% and 9.5%
Senior Notes ("the Exchange Offer"). As a result of the Exchange Offer,
approximately $234.5 million, $342.3 million, $247.8 million, $246.5 million,
$76.9 million and $289.8 million principal amount of TODCO's outstanding 6.5%,
6.75%, 6.95%, 7.375%, 9.125% and 9.5% Senior Notes, respectively, were exchanged
for the Company's newly issued 6.5%, 6.75%, 6.95%, 7.375%, 9.125% and 9.5%
Senior Notes having the same principal amount, interest rate, redemption terms
and payment and maturity dates. Because the holders of a majority in principal
amount of each of these series of notes consented to the proposed amendments to
the applicable indenture pursuant to which the notes were issued, some
covenants, restrictions and events of default were eliminated from the
indentures with respect to these series of notes. After the Exchange Offer,
approximately $5.0 million, $7.7 million, $2.2 million, $3.5 million, $10.2
million and $10.2 million principal amount of the outstanding 6.5%, 6.75%,
6.95%, 7.375%, 9.125% and 9.5% Senior Notes, respectively, not exchanged remain
the obligation of TODCO. These notes are combined with the notes of the
corresponding series issued by the Company in the above table. In connection
with the Exchange Offer, TODCO paid $8.3 million in consent payments to holders
of TODCO's notes whose notes were exchanged. The consent payments are being
amortized as an increase to interest expense over the remaining term of the
respective notes and such amortization is expected to be approximately $1.1
million in 2003.
11
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
NOTE 4 - INTEREST RATE SWAPS
In June 2001, the Company entered into interest rate swap agreements in the
aggregate notional amount of $700.0 million with a group of banks relating to
the Company's $700.0 million aggregate principal amount of 6.625% Notes due
April 2011. In February 2002, the Company entered into interest rate swap
agreements with a group of banks in the aggregate notional amount of $900.0
million relating to the Company's $350.0 million aggregate principal amount of
6.75% Senior Notes due April 2005, $250.0 million aggregate principal amount of
6.95% Senior Notes due April 2008 and $300.0 million aggregate principal amount
of 9.5% Senior Notes due December 2008. The objective of each transaction was to
protect the debt against changes in fair value due to changes in the benchmark
interest rate. Under each interest rate swap, the Company received the fixed
rate equal to the coupon of the hedged item and paid the floating rate (LIBOR)
plus a margin of 50 basis points, 246 basis points, 171 basis points and 413
basis points, respectively, which were designated as the respective benchmark
interest rates, on each of the interest payment dates until maturity of the
respective notes. The hedges were considered perfectly effective against changes
in the fair value of the debt due to changes in the benchmark interest rates
over their term. As a result, the shortcut method applied and there was no need
to periodically reassess the effectiveness of the hedges during the term of the
swaps.
In January 2003, the Company terminated the swaps with respect to its
6.75%, 6.95% and 9.5% Senior Notes. In March 2003, the Company terminated the
swaps with respect to its 6.625% Notes. As a result of these terminations, the
Company received cash proceeds, net of accrued interest, of approximately $173.5
million that was recognized as a fair value adjustment to long-term debt in the
Company's consolidated balance sheet and is being amortized as a reduction to
interest expense over the life of the underlying debt. Such amortization is
expected to be approximately $23.1 million ($0.07 per diluted share) in 2003.
Deepwater Drilling LLC, an unconsolidated subsidiary in which the Company
has a 50 percent ownership interest, has entered into interest rate swaps with
aggregate market values netting to a liability of $5.0 million at March 31,
2003. The Company's interest in these swaps was included in accumulated other
comprehensive income, net of tax, with corresponding reductions to deferred
income taxes and investments in and advances to joint ventures.
NOTE 5 - SEGMENTS
The Company's operations are aggregated into two reportable segments: (i)
International and U.S. Floater Contract Drilling Services and (ii) Gulf of
Mexico Shallow and Inland Water. The International and U.S. Floater Contract
Drilling Services segment consists of fifth-generation semisubmersibles and
drillships, other deepwater semisubmersibles and drillships, mid-water
semisubmersibles and drillships, non-U.S. jackup drilling rigs, other mobile
offshore drilling units and other assets used in support of offshore drilling
activities and offshore support services. The Gulf of Mexico Shallow and Inland
Water segment consists of jackup and submersible drilling rigs and inland
drilling barges located in the U.S. Gulf of Mexico and Trinidad, as well as land
and lake barge drilling units located in Venezuela. The Company provides
services with different types of drilling equipment in several geographic
regions. The location of the Company's rigs and the allocation of resources to
build or upgrade rigs is determined by the activities and needs of clients.
Accounting policies of the segments are the same as those described in Note 2.
The Company accounts for intersegment revenue and expenses as if the revenue or
expenses were to third parties at current market prices.
12
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
Operating revenues and income before income taxes, minority interest and
cumulative effect of a change in accounting principle by segment are as follows
(in millions):
Three Months Ended
March 31,
----------------
2003 2002
------- -------
Operating Revenues
International and U.S. Floater Contract Drilling Services $562.7 $623.2
Gulf of Mexico Shallow and Inland Water 53.3 44.7
------- -------
Total Operating Revenues $616.0 $667.9
------- -------
Operating income before general and administrative expense
International and U.S. Floater Contract Drilling Services $144.0 $194.9
Gulf of Mexico Shallow and Inland Water (28.5) (32.8)
------- -------
115.5 162.1
Unallocated general and administrative expense (13.9) (19.8)
Unallocated other income (expense), net (42.7) (50.5)
------- -------
Income before Income Taxes, Minority Interest and
Cumulative Effect of a Change in Accounting Principle $ 58.9 $ 91.8
======= =======
Total assets by segment were as follows (in millions):
March 31, December 31,
2003 2002
---------- -------------
International and U.S. Floater Contract Drilling Services $ 11,820.5 $ 11,804.1
Gulf of Mexico Shallow and Inland Water 841.9 861.0
---------- -------------
Total Assets $ 12,662.4 $ 12,665.1
========== =============
NOTE 6 - ASSET DISPOSITIONS AND IMPAIRMENT LOSS
In January 2003, in the International and U.S. Floater Contract Drilling
Services segment, the Company completed the sale of a jackup rig, the RBF 160,
for net proceeds of $13.0 million and recognized a net after-tax gain of $0.2
million. The proceeds were received in December 2002.
During the three months ended March 31, 2003, the Company settled an
insurance claim and sold certain other assets for net proceeds of approximately
$2.2 million and recorded net after-tax gains of $1.2 million in the Company's
International and U.S. Floater Contract Drilling Services segment.
In March 2002, in the International and U.S. Floater Contract Drilling
Services segment, the Company sold two semisubmersible rigs, the Transocean 96
and Transocean 97, for net proceeds of $30.7 million and recognized net
after-tax gains of $1.3 million.
During the three months ended March 31, 2002, the Company settled an
insurance claim and sold certain other assets for net proceeds of approximately
$12.7 million and recorded net after-tax gains of $0.5 million in the Company's
International and U.S. Floater Contract Drilling Services segment and net
after-tax losses of $0.6 million in the Company's Gulf of Mexico Shallow and
Inland Water segment.
During the three months ended March 31, 2003, the Company recorded a
pre-tax non-cash impairment charge in the International and U.S. Floater
Contract Drilling Services segment of $1.0 million, which resulted from the
13
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
Company's decision to discontinue its leases on its oil and gas properties. The
impairment was determined and measured based on the remaining book value of the
asset at the time the decision was made to discontinue the leases.
During the three months ended March 31, 2002, the Company recorded a
pre-tax non-cash impairment charge related to an asset held for sale in the Gulf
of Mexico Shallow and Inland Water segment of $1.1 million, which resulted from
deterioration in market conditions. The impairment was determined and measured
based on an estimate of fair value derived from an offer from a potential buyer.
NOTE 7 - EARNINGS PER SHARE
The reconciliation of the numerator and denominator used for the
computation of basic and diluted earnings per share is as follows (in millions,
except per share data):
Three Months Ended
March 31,
----------------------
2003 2002
---------- ----------
NUMERATOR FOR BASIC AND DILUTED EARNINGS (LOSS) PER SHARE
Income Before Cumulative Effect of a Change in Accounting Principle $ 47.2 $ 77.3
Cumulative Effect of a Change in Accounting Principle - (1,363.7)
---------- ----------
Net Income (Loss) $ 47.2 $(1,286.4)
========== ==========
DENOMINATOR FOR DILUTED EARNINGS (LOSS) PER SHARE
Weighted-average shares outstanding for basic earnings per share 319.7 319.1
Effect of dilutive securities:
Employee stock options and unvested stock grants 1.3 2.3
Warrants to purchase ordinary shares 0.6 1.7
---------- ----------
Adjusted weighted-average shares and assumed conversions for
diluted earnings per share 321.6 323.1
========== ==========
BASIC EARNINGS (LOSS) PER SHARE
Income Before Cumulative Effect of a Change in Accounting Principle $ 0.15 $ 0.24
Cumulative Effect of a Change in Accounting Principle - (4.27)
---------- ----------
Net Income (Loss) $ 0.15 $ (4.03)
========== ==========
DILUTED EARNINGS (LOSS) PER SHARE
Income Before Cumulative Effect of a Change in Accounting Principle $ 0.15 $ 0.24
Cumulative Effect of a Change in Accounting Principle - (4.22)
---------- ----------
Net Income (Loss) $ 0.15 $ (3.98)
========== ==========
Ordinary shares subject to issuance pursuant to the conversion features of
the convertible debentures are not included in the calculation of adjusted
weighted-average shares and assumed conversions for diluted earnings per share
because the effect of including those shares is anti-dilutive.
NOTE 8 - CONTINGENCIES
Legal Proceedings - In 1990 and 1991, two of the Company's subsidiaries
were served with various assessments collectively valued at approximately $7
million from the municipality of Rio de Janeiro, Brazil to collect a municipal
tax on services. The Company believes that neither subsidiary is liable for the
taxes and has contested the assessments in the Brazilian administrative and
court systems. The Brazil Supreme Court rejected the Company's appeal of an
adverse lower court's ruling with respect to a June 1991 assessment, which was
valued at approximately
14
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
$6 million. The Company plans to challenge the assessment in a separate
proceeding. The Company recently received a favorable ruling from the Brazil
Superior Court of Justice in connection with a disputed August 1990 assessment.
The Company is awaiting a ruling from the Taxpayer's Council in connection with
an October 1990 assessment. If the Company's defenses are ultimately
unsuccessful, the Company believes that the Brazilian government-controlled oil
company, Petrobras, has a contractual obligation to reimburse the Company for
municipal tax payments required to be paid by them. The Company does not expect
the liability, if any, resulting from these assessments to have a material
adverse effect on its business or consolidated financial position.
In March 1997, an action was filed by Mobil Exploration and Producing U.S.
Inc. and affiliates, St. Mary Land & Exploration and affiliates and Samuel Geary
and Associates Inc. against the Company, certain underwriters at Lloyd's (the
"Underwriters") and an insurance broker in the 16th Judicial District Court of
St. Mary Parish, Louisiana. The plaintiffs alleged damages amounting to in
excess of $50 million in connection with the drilling of a turnkey well in 1995
and 1996. The case was tried before a jury in January and February 2000, and the
jury returned a verdict of approximately $30 million in favor of the plaintiffs
for excess drilling costs, loss of insurance proceeds, loss of hydrocarbons,
expenses and interest. The Company and the Underwriters appealed such judgment,
and the Louisiana Court of Appeals reduced the amount for which the Company may
be responsible to less than $10 million. The plaintiffs requested that the
Supreme Court of Louisiana consider the matter and reinstate the original
verdict. The Company and the Underwriters also appealed to the Supreme Court of
Louisiana requesting that the Court reduce the verdict or, in the case of the
Underwriters, eliminate any liability for the verdict. Prior to the Supreme
Court of Louisiana ruling on all such petitions, the Company settled with the
St. Mary group of plaintiffs and the State of Louisiana. Thereafter, the Supreme
Court of Louisiana denied the applications for consideration by the remaining
plaintiffs but has not yet ruled on the Company's application or the application
of the Underwriters. The plaintiffs may seek rehearing of the decision. The
Company believes that any amounts, apart from a small deductible, paid in
settlement or which may ultimately be paid to the remaining plaintiffs are
covered by relevant primary and excess liability insurance policies. However,
the insurers and Underwriters have denied all coverage. The Company has
instituted litigation against those insurers and Underwriters to enforce its
rights under the relevant policies. While the Company cannot predict the outcome
of such litigation, it does not expect that the ultimate outcome of this case
will have a material adverse effect on its business or consolidated financial
position.
The Company has certain other actions or claims pending that have been
previously discussed and reported in the Company's Annual Report on Form 10-K
for the year ended December 31, 2002 and the Company's other reports filed with
the Securities and Exchange Commission. There have been no material developments
in these previously reported matters. The Company and its subsidiaries are
involved in a number of other lawsuits, all of which have arisen in the ordinary
course of the Company's business. The Company does not believe that ultimate
liability, if any, resulting from any such other pending litigation will have a
material adverse effect on its business or consolidated financial position.
Letters of Credit and Surety Bonds - The Company had letters of credit
outstanding at March 31, 2003 totaling $61.2 million. These letters of credit
guarantee various contract bidding and insurance activities under various lines
provided by several banks.
As is customary in the contract drilling business, the Company also has
various surety bonds totaling $138.8 million in place that secure customs
obligations relating to the importation of its rigs and certain performance and
other obligations.
NOTE 9 - RELATED PARTY TRANSACTIONS
Delta Towing - In January 2003, Delta Towing LLC ("Delta Towing") failed to
make its scheduled quarterly interest payment of $1.7 million on the notes
receivable. The Company signed a 90-day waiver of the terms requiring payment of
interest. As of March 31, 2003, payment had not been received. At March 31,
2003, the Company had interest receivable from Delta Towing of $2.9 million. See
Note 11.
15
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
NOTE 10 - RESTRUCTURING CHARGES
In September 2002, the Company committed to a restructuring plan to close
its engineering office in Montrouge, France. The Company established a liability
of $2.8 million for the estimated severance-related costs associated with the
involuntary termination of 16 employees pursuant to this plan. The charge was
reported as operating and maintenance expense in the International and U.S.
Floater Contract Drilling Services segment in the Company's consolidated
statements of operations. Through March 31, 2003, $2.2 million had been paid to
15 employees whose positions were eliminated as a result of this plan. The
Company anticipates that substantially all amounts will be paid by the end of
the second quarter of 2003.
In September 2002, the Company committed to a restructuring plan for a
staff reduction in Norway as a result of a decline in activity in that region.
The Company established a liability of $1.2 million for the estimated
severance-related costs associated with the involuntary termination of six
employees pursuant to this plan. The charge was reported as operating and
maintenance expense in the International and U.S. Floater Contract Drilling
Services segment in the Company's consolidated statements of operations. Through
March 31, 2003, $0.7 million had been paid representing full or partial payments
to five employees whose positions are being eliminated as a result of this plan.
The Company anticipates that substantially all amounts will be paid by the end
of the first quarter of 2005.
In September 2002, the Company committed to a restructuring plan to
consolidate certain functions and offices utilized in its Gulf of Mexico Shallow
and Inland Water segment. The plan resulted in the closure of an administrative
office and warehouse in Louisiana and relocation of most of the operations and
administrative functions previously conducted at that location. The Company
established a liability of $1.2 million for the estimated severance-related
costs associated with the involuntary termination of 57 employees pursuant to
this plan. The charge was reported as operating and maintenance expense in the
Company's consolidated statements of operations. Through March 31, 2003, $1.1
million had been paid to 44 employees whose employment has been terminated as a
result of this plan. The Company anticipates that substantially all amounts will
be paid by the end of the second quarter of 2003.
NOTE 11 - SUBSEQUENT EVENTS
Debt Repayments - In April 2003, the Company repaid all of the $239.5
million principal amount outstanding 6.5% Senior Notes, plus accrued and unpaid
interest, in accordance with their scheduled maturities. The Company funded the
repayment from existing cash balances.
In May 2003, the Company intends to repurchase and retire the entire $50.0
million principal amount outstanding 9.41% Nautilus Class A2 Notes due May 2005.
The Company expects to record a pre-tax loss on retirement of debt of
approximately $6.0 million. The Company expects to fund the repurchases from
existing cash balances. No assurance can be given that the Company will be able
to complete this repurchase on the expected terms or otherwise.
Zero Coupon Convertible Debentures - On April 25, 2003, the Company
announced that holders of its Zero Coupon Convertible Debentures due May 24,
2020 have the option to require the Company to repurchase their debentures as of
May 24, 2003. Each holder of the debentures has the right to require the Company
to repurchase on May 24, 2003 all or any part of such holder's debentures at a
repurchase price of $628.57 per $1,000 principal amount. Under the terms of the
debentures, the Company has the option to pay for the debentures with cash, the
Company's ordinary shares, or a combination of cash and shares, and has elected
to pay for the debentures solely with cash. If all outstanding debentures are
surrendered for repurchase, the aggregate cash repurchase price will be
approximately $543.7 million. The Company expects that virtually all of the
holders of the Zero Coupon Convertible Debentures will exercise their put option
in May 2003 and, at that time, the Company would recognize additional expense of
approximately $11 million as a pre-tax loss on retirement of debt to fully
amortize the remaining debt issue costs related to these debentures. The Company
intends to pay the repurchase price from existing cash balances. The
16
TRANSOCEAN INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
debentures are convertible, at the option of the holder, into 8.1566 of the
Company's ordinary shares per $1,000 principal amount, subject to adjustment
under certain circumstances.
Delta Towing - In April 2003, Delta Towing failed to make its scheduled
quarterly interest payment. In April 2003, Delta Towing also failed to make a
quarterly interest payment originally due in January 2003 that was deferred to
April as a result of the 90-day waiver signed in January 2003. The Company
considers Delta Towing to be in default but believes that future cash flows will
result in payment of the recorded principal and interest ultimately being
received.
Nigeria Strike - In April 2003, members of the local branch of a Nigerian
union initiated a strike on four of the Company's rigs working there. The labor
strike began on April 16 on the semisubmersible M.G. Hulme, Jr. and on April 19
on the semisubmersible rig Sedco 709 and the jackup rigs Trident VI and Trident
VIII. The striking workers have now departed the rigs, and the Company is in the
process of returning all four of the rigs to service. The M.G. Hulme, Jr. has
resumed operations. The three remaining rigs are expected to resume operations
within the next week, although no assurance can be given that the Company will
be able to return the three rigs to service in that time frame. At full
dayrates, the four rigs were contracted at rates that would result in combined
revenue of approximately $342,000 per day. The rigs do not earn dayrates until
they return to service.
17
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following information should be read in conjunction with the audited
consolidated financial statements and the notes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 2002.
OVERVIEW
Transocean Inc. (together with its subsidiaries and predecessors, unless
the context requires otherwise, the "Company," "Transocean," "we, " "us" or
"our") is a leading international provider of offshore and inland marine
contract drilling services for oil and gas wells. As of April 30, 2003, we
owned, had partial ownership interests in or operated more than 170 mobile
offshore and barge drilling units. As of this date, our fleet included 13
fifth-generation semisubmersibles and drillships ("floaters"), 15 other
deepwater floaters, 32 mid-water floaters and 55 jackup drilling rigs. Our fleet
also included 35 drilling barges, five tenders, three submersible drilling rigs,
two platform drilling rigs, a mobile offshore production unit, and a land
drilling rig, as well as nine land rigs and three lake barges in Venezuela. We
contract our drilling rigs, related equipment and work crews primarily on a
dayrate basis to drill oil and gas wells. We also provide additional services,
including management of third-party well service activities.
We have reclassified our floaters into a deepwater category, consisting of
our fifth-generation floaters and other deepwater floaters, and a mid-water
category. We have also reviewed the use of the term "deepwater" in connection
with our fleet. The term as used in the drilling industry to denote a particular
segment of the market varies and continues to evolve with technological
improvements. We generally view the deepwater market sector as that which begins
in water depths of approximately 4,500 feet. Within our "deepwater" category, we
consider our "fifth-generation" rigs to be the semisubmersibles Deepwater
Horizon, Cajun Express, Deepwater Nautilus, Sedco Energy and Sedco Express and
the drillships Deepwater Discovery, Deepwater Expedition, Deepwater Frontier,
Deepwater Millennium, Deepwater Pathfinder, Discoverer Deep Seas, Discoverer
Enterprise and Discoverer Spirit. The floaters comprising the "other deepwater"
sub-category are those semisubmersible rigs and drillships which have a water
depth capacity of at least 4,500 feet. The mid-water category is comprised of
those floaters with a water depth capacity of less than 4,500 feet. We have
reclassified these rigs to better reflect how we view, and how we believe our
investors and the industry view, our fleet.
Our operations are aggregated into two reportable segments: (i)
International and U.S. Floater Contract Drilling Services and (ii) Gulf of
Mexico Shallow and Inland Water. The International and U.S. Floater Contract
Drilling Services segment consists of semisubmersibles and drillships, non-U.S.
jackups, other mobile offshore drilling units and other assets used in support
of offshore drilling activities and offshore support services. The Gulf of
Mexico Shallow and Inland Water segment consists of jackup and submersible
drilling rigs located in the U. S. Gulf of Mexico and Trinidad and U.S. inland
drilling barges, as well as land and lake barge drilling units located in
Venezuela. We provide services with different types of drilling equipment in
several geographic regions. The location of our rigs and the allocation of
resources to build or upgrade rigs is determined by the activities and needs of
our clients.
As a result of the implementation of Emerging Issues Task Force ("EITF")
Issue No. 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent,
costs we incur that are charged to our clients on a reimbursable basis are being
recognized as operating and maintenance expense beginning in 2003. In addition,
the amounts billed to our clients associated with these reimbursable costs are
being recognized as operating revenue. We expect the increase in operating
revenues and operating and maintenance expense resulting from this
implementation to be between $80 million and $100 million for the year 2003.
This change in the accounting treatment for client reimbursables will have no
effect on our results of operations or consolidated financial position. We
previously recorded these charges and related reimbursements on a net basis in
operating and maintenance expense. Prior period amounts have not been
reclassified, as the amounts were not material.
In July 2002, we announced plans to pursue a divestiture of our Gulf of
Mexico Shallow and Inland Water business. In December 2002, our subsidiary,
TODCO, formerly known as R&B Falcon Corporation, filed a registration statement
with the Securities and Exchange Commission ("SEC") relating to our previously
announced initial public offering of our Gulf of Mexico Shallow and Inland Water
business. We expect to separate this business from Transocean and establish
TODCO as a publicly traded company. We are proceeding to reorganize TODCO as the
18
entity that owns that business in preparation of the offering. We continue with
our plan to transfer assets not used in this business from TODCO to our other
subsidiaries, and these internal transfers will not affect the consolidated
financial statements of Transocean. We expect to complete the initial public
offering when market conditions warrant, subject to various factors. Given the
current general uncertainty in the equity and U.S. natural gas drilling markets,
we are unsure when the transaction could be completed on terms acceptable to us.
We do not expect to sell all of our interest in TODCO in the initial public
offering. Until we complete the initial public offering transaction, we will
continue to operate and account for TODCO primarily as our Gulf of Mexico
Shallow and Inland Water segment.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Our discussion and analysis of our financial condition and results of
operations are based upon our condensed consolidated financial statements. The
preparation of these financial statements requires us to make estimates and
judgments that affect the reported amounts of assets, liabilities, revenues,
expenses and related disclosure of contingent assets and liabilities. On an
on-going basis, we evaluate our estimates, including those related to bad debts,
materials and supplies obsolescence, investments, property and equipment,
intangible assets and goodwill, income taxes, financing operations, workers'
insurance, pensions and other post-retirement and employment benefits and
contingent liabilities. We base our estimates on historical experience and on
various other assumptions that are believed to be reasonable under the
circumstances, the results of which form the basis for making judgments about
the carrying values of assets and liabilities that are not readily apparent from
other sources. Actual results may differ from these estimates under different
assumptions or conditions.
We believe the following are our most critical accounting policies. These
policies require significant judgments and estimates used in the preparation of
our consolidated financial statements.
Allowance for doubtful accounts-We establish reserves for doubtful accounts
on a case-by-case basis when we believe the required payment of specific amounts
owed to us is unlikely to occur. We derive a majority of our revenue from
services to international oil companies and government-owned or
government-controlled oil companies. Our receivables are concentrated in certain
oil-producing countries. We generally do not require collateral or other
security to support client receivables. If the financial condition of our
clients was to deteriorate or their access to freely convertible currency was
restricted, resulting in impairment of their ability to make the required
payments, additional allowances may be required.
Valuation allowance for deferred tax assets-We record a valuation allowance
to reduce our deferred tax assets to the amount that is more likely than not to
be realized. While we have considered future taxable income and ongoing prudent
and feasible tax planning strategies in assessing the need for the valuation
allowance, should we determine that we would more likely than not be able to
realize our deferred tax assets in the future in excess of our net recorded
amount, an adjustment to the valuation allowance would increase income in the
period such determination was made. Likewise, should we determine that we would
more likely than not be able to realize all or part of our net deferred tax
asset in the future, an adjustment to the valuation allowance would reduce
income in the period such determination was made.
Goodwill impairment-We perform a test for impairment of our goodwill
annually as of October 1 as prescribed by Statement of Financial Accounting
Standards ("SFAS") 142, Goodwill and Other Intangibles. Because our business is
cyclical in nature, goodwill could be significantly impaired depending on when
the assessment is performed in the business cycle. The fair value of our
reporting units is based on a blend of estimated discounted cash flows, publicly
traded company multiples and acquisition multiples. Estimated discounted cash
flows are based on projected utilization and dayrates. Publicly traded company
multiples and acquisition multiples are derived from information on traded
shares and analysis of recent acquisitions in the marketplace, respectively, for
companies with operations similar to ours. Changes in the assumptions used in
the fair value calculation could result in an estimated reporting unit fair
value that is below the carrying value, which may give rise to an impairment of
goodwill. In addition to the annual review, we also test for impairment should
an event occur or circumstances change that may indicate a reduction in the fair
value of a reporting unit below its carrying value.
19
Property and equipment-Our property and equipment represents more than 60
percent of our total assets. We determine the carrying value of these assets
based on our property and equipment accounting policies, which incorporate our
estimates, assumptions and judgments relative to capitalized costs, useful lives
and salvage values of our rigs. We review our property and equipment for
impairment when events or changes in circumstances indicate that the carrying
value of such assets may be impaired or when reclassifications are made between
property and equipment and assets held for sale as prescribed by SFAS 144,
Accounting for Impairment or Disposal of Long-Lived Assets. Asset impairment
evaluations are based on estimated undiscounted cash flows for the assets being
evaluated. Our estimates, assumptions and judgments used in the application of
our property and equipment accounting policies reflect both historical
experience and expectations regarding future industry conditions and operations.
Using different estimates, assumptions and judgments, especially those involving
the useful lives of our rigs and expectations regarding future industry
conditions and operations, could result in different carrying values of assets
and results of operations.
Pension and Other Postretirement Benefits-Our defined benefit pension and
other postretirement benefit (retiree life insurance and medical benefits)
obligations and the related benefit costs are accounted for in accordance with
SFAS 87, Employers' Accounting for Pensions, and SFAS 106, Employers' Accounting
for Postretirement Benefits Other than Pensions. Pension and postretirement
costs and obligations are actuarially determined and are affected by assumptions
including expected return on plan assets, discount rates, compensation
increases, employee turnover rates and health care cost trend rates. We evaluate
our assumptions periodically and make adjustments to these assumptions and the
recorded liabilities as necessary.
Two of the most critical assumptions are the expected long-term rate of
return on plan assets and the assumed discount rate. We evaluate our assumptions
regarding the estimated long-term rate of return on plan assets based on
historical experience and future expectations on investment returns, which are
calculated by our third party investment advisor utilizing the asset allocation
classes held by the plan's portfolios. We utilize the Moody's Aa long-term
corporate bond yield as a basis for determining the discount rate for a majority
of our plans. Changes in these and other assumptions used in the actuarial
computations could impact our projected benefit obligations, pension
liabilities, pension expense and other comprehensive income. We base our
determination of pension expense on a market-related valuation of assets that
reduces year-to-year volatility. This market-related valuation recognizes
investment gains or losses over a five-year period from the year in which they
occur. Investment gains or losses for this purpose are the difference between
the expected return calculated using the market-related value of assets and the
actual return based on the market-related value of assets.
Contingent liabilities-We establish reserves for estimated loss
contingencies when we believe a loss is probable and the amount of the loss can
be reasonably estimated. Revisions to contingent liabilities are reflected in
income in the period in which different facts or information become known or
circumstances change that affect our previous assumptions with respect to the
likelihood or amount of loss. Reserves for contingent liabilities are based upon
our assumptions and estimates regarding the probable outcome of the matter.
Should the outcome differ from our assumptions and estimates, revisions to the
estimated reserves for contingent liabilities would be required.
OPERATING RESULTS
THREE MONTHS ENDED MARCH 31, 2003 COMPARED TO THREE MONTHS ENDED MARCH 31,
2002
Our revenues and operating and maintenance expense decreased by $51.9
million and $6.9 million, respectively. In addition, our overall average
dayrate and utilization decreased from $72,500 and 61%, respectively, for the
quarter ended March 31, 2002 to $69,100 and 55%, respectively, for the quarter
ended March 31, 2003. These decreases were mainly attributable to a decline in
overall market conditions and resulted from a general uncertainty over world
economic and political events. Following is a detailed analysis of our
International and U.S. Floater Contract Drilling Services segment and Gulf of
Mexico Shallow and Inland Water segment operating results, as well as an
analysis of income and expense categories that we have not allocated to our two
segments.
20
INTERNATIONAL AND U.S. FLOATER CONTRACT DRILLING SERVICES SEGMENT
Three Months Ended
March 31,
--------------------
2003 2002 Change % Change
--------- --------- ---------- ---------
(In millions, except day amounts and % change)
Operating days (a) 5,882.3 6,883.9 (1,001.6) (14.5)%
Utilization (a) (b) (d) 68.8% 82.0% N/A (16.1)%
Average dayrate (a) (c) (d) $ 91,600 $ 90,100 $ 1,500 1.7%
Contract drilling revenues $ 541.1 $ 623.2 $ (82.1) (13.2)%
Client reimbursable revenues 21.6 - 21.6 N/M
--------- --------- ---------- ---------
562.7 623.2 (60.5) (9.7)%
Operating and maintenance 315.5 328.7 (13.2) (4.0)%
Depreciation 103.6 102.3 1.3 1.3%
Impairment loss on long-lived assets 1.0 - 1.0 N/M
Gain from sale of assets, net (1.4) (2.7) 1.3 (48.1)%
--------- --------- ---------- ---------
Operating income before general and administrative
expense $ 144.0 $ 194.9 $ (50.9) (26.1)%
========= ========= ========== =========
_______________
"N/A" means not applicable
"N/M" means not meaningful
(a) Applicable to all rigs.
(b) Utilization is defined as the total actual number of revenue earning days as a
percentage of the total number of calendar days in the period.
(c) Average dayrate is defined as contract drilling revenue earned per revenue earning day.
(d) Effective January 1, 2003, the calculation of average dayrates and utilization has
changed to include all rigs based on contract drilling revenues. Prior periods have been
restated to reflect the change.
This segment's average dayrates and utilization (excluding rigs sold,
returned to owner or transferred between this segment and the Gulf of Mexico
Shallow and Inland Water segment) decreased from $92,600 and 82% to $92,300 and
68%, for the three months ended March 31, 2002 compared to the same period for
2003, respectively, which resulted in a decrease in operating revenues of $75.8
million. Additional decreases resulted from the sale of rigs ($6.5 million), a
leased rig returned to its owner ($1.4 million) and the transfer of a jackup rig
from this segment to the Gulf of Mexico Shallow and Inland Water segment during
and subsequent to the first quarter of 2002 ($2.1 million). These decreases
were partially offset by an increase in revenue from a rig transferred into this
segment from the Gulf of Mexico Shallow and Inland Water segment subsequent to
the first quarter of 2002 ($4.6 million).
Operating revenues for the three months ended March 31, 2003 included $21.6
million related to costs incurred and billed to clients on a reimbursable basis.
See "-Overview."
A large portion of our operating and maintenance expense consists of
employee-related costs and is fixed or only semi-variable. Accordingly,
operating and maintenance expense does not vary in direct proportion to activity
or dayrates.
The decrease in this segment's operating and maintenance expenses was
primarily due to rigs stacked as a result of lower utilization ($18.1 million),
sold ($5.8 million), removed from our active fleet ($2.4 million) or returned to
owner ($1.4 million) during and subsequent to the first quarter of 2002. In
addition, we received $2.6 million in proceeds from an insurance claim recovery
in the first quarter of 2003. Partially offsetting the decreases were
additional costs incurred relating to client reimbursable expenses recognized as
operating and maintenance expense as
21
a result of implementing EITF 99-19 (see "-Overview"). We also incurred
additional expense resulting from the transfer of a jackup rig into this segment
from the Gulf of Mexico Shallow and Inland Water subsequent to the first quarter
of 2002 ($2.5 million).
GULF OF MEXICO SHALLOW AND INLAND WATER SEGMENT
Three Months Ended
March 31,
--------------------
2003 2002 Change % Change
--------- --------- -------- ---------
(In millions, except day amounts and % change)
Operating days (a) 2,622.0 2,281.3 340.7 14.9%
Utilization (a) (b) (d) 38.3% 34.7% N/A 10.4%
Average dayrate (a) (c) (d) $ 18,500 $ 19,600 $(1,100) (5.6)%
Contract drilling revenues $ 48.5 $ 44.7 $ 3.8 8.5%
Client reimbursable revenues 4.8 - 4.8 N/M
--------- --------- -------- ---------
53.3 44.7 8.6 19.2%
Operating and maintenance 58.6 52.3 6.3 12.0%
Depreciation 23.2 23.3 (0.1) (0.4)%
Impairment loss on long-lived assets - 1.1 (1.1) N/M
Loss from sale of assets, net - 0.8 (0.8) N/M
--------- --------- -------- ---------
Operating loss before general and administrative
expense $ (28.5) $ (32.8) $ 4.3 13.1%
========= ========= ======== =========
_________________
"N/A" means not applicable
"N/M" means not meaningful
(a) Applicable to all rigs.
(b) Utilization is defined as the total actual number of revenue earning days as a
percentage of the total number of calendar days in the period.
(c) Average dayrate is defined as contract drilling revenue earned per revenue earning
day.
(d) Effective January 1, 2003, the calculation of average dayrates and utilization was
changed to include all rigs based on contract drilling revenues. Prior periods have been
restated to reflect the change.
The increase in this segment's operating revenues was primarily due to
increased utilization from 34% for the three months ended March 31, 2002 to 38%
for the same period in 2003, excluding rigs transferred to the International and
U.S. Floater Contract Drilling Services segment or sold during and subsequent to
the first quarter of 2002, which resulted in an increase in revenue of $9.2
million. The increase was partially offset by decreased average dayrates from
$20,300 (excluding the effect of the transfer of a jackup rig from this segment
into the International and U.S. Floater Contract Drilling Services segment and
the sale of two mobile offshore production units) for the three months ended
March 31, 2002 to $18,500 for the same period in 2003, which resulted in a
decrease in revenue of $4.7 million.
Operating revenues for the three months ended March 31, 2003 included $4.8
million related to costs incurred and billed to clients on a reimbursable basis.
See "-Overview."
A large portion of our operating and maintenance expense consists of
employee-related costs and is fixed or only semi-variable. Accordingly,
operating and maintenance expense does not vary in direct proportion to activity
or dayrates.
The increase in this segment's operating and maintenance expenses was
primarily due to an increase in activity resulting in increased personnel
expenses ($4.9 million). In addition, operating and maintenance expenses
increased
22
due to costs incurred relating to client reimbursable expenses recognized as
operating and maintenance expense as a result of implementing EITF 99-19 during
the three months ended March 31, 2003 (see "-Overview"). The increase in
miscellaneous and administrative expenses of $1.1 million related to an
insurance claim provision ($2.5 million) partially offset by a decrease in
provision for doubtful accounts ($1.3 million) upon collection of amounts
previously reserved. These increases were partially offset by lower expenses
resulting from a reduction in maintenance expenses ($2.5 million) and the
transfer of a jackup rig from this segment into the International and U.S.
Floater Contract Drilling Services segment ($0.8 million).
TOTAL COMPANY RESULTS OF OPERATIONS
Three Months Ended
March 31,
---------------------
2003 2002 Change % Change
---------- --------- -------- ---------
(In millions, except % change)
General and Administrative Expense $ 13.9 $ 19.8 $ (5.9) (29.8)%
Other (Income) Expense, net
Equity in earnings of joint ventures (3.6) (1.9) (1.7) 89.5%
Interest income (6.9) (4.2) (2.7) 64.3%
Interest expense 52.6 55.9 (3.3) (5.9)%
Other, net 0.6 0.7 (0.1) (14.3)%
Income Tax Expense 11.8 13.8 (2.0) (14.5)%
Cumulative Effect of a Change in Accounting Principle - (1,363.7) 1,363.7 N/M
_______________
"N/M" means not meaningful
The decrease in general and administrative expense was primarily
attributable to $3.9 million of costs related to the exchange of our notes for
TODCO's notes in March 2002 as more fully described in Note 3 to our condensed
consolidated financial statements. In addition, personnel expenses decreased
$1.0 million primarily due to lower pension expense in 2003 and a one-time
curtailment gain related to retiree life insurance.
The increase in equity in earnings of joint ventures was primarily related
to our 60 percent share of the earnings of Deepwater Drilling II L.L.C. ("DDII
LLC"), which owns the Deepwater Frontier, and our 50 percent share of Deepwater
Drilling L.L.C. ("DD LLC"), which owns the Deepwater Pathfinder. These rigs
experienced increased utilization and average dayrates in the first quarter of
2003 compared to the same period in 2002. Offsetting the increase in equity in
earnings of joint ventures was our 25 percent share of losses from Delta Towing
Holdings, L.L.C. The increase in interest income was primarily due to interest
earned on higher average cash balances for the three months ended March 31, 2003
compared to the same period in 2002. The decrease in interest expense was
attributable to reductions in interest expense of $1.4 million associated with
debt refinanced and retired during and subsequent to March 31, 2002. We also
received a refund of interest from a taxing authority that resulted in a
reduction in interest expense of $1.8 million. Additionally, in the first
quarter of 2003, we terminated our fixed to floating interest rate swaps, which
resulted in an increase in interest expense of $3.6 million as we paid fixed
interest rate on the underlying debt subsequent to the termination of the swaps.
Partially offsetting these increases was a decrease in interest expense of $3.5
million related to the amortization of the gain from the termination of the
interest rate swaps.
We operate internationally and provide for income taxes based on the tax
laws and rates in the countries in which we operate and earn income. There is no
expected relationship between the provision for income taxes and income before
income taxes.
During the three months ended March 31, 2002, we recognized a $1,363.7
million cumulative effect of a change in accounting principle in our Gulf of
Mexico Shallow and Inland Water segment related to the implementation of SFAS
142 as more fully described in Note 2 to our condensed consolidated financial
statements.
23
FINANCIAL CONDITION
March 31, December 31, %
2003 2002 Change Change
-------------------------------------------
(In millions)
TOTAL ASSETS
International and U.S. Floater Contract Drilling Services $ 11,820.5 $ 11,804.1 $ 16.4 0.1%
Gulf of Mexico Shallow and Inland Water 841.9 861.0 (19.1) (2.2)%
---------- ------------ -------- -------
$ 12,662.4 $ 12,665.1 $ (2.7) N/M
========== ============ ======== =======
_________________
"N/M" means not meaningful
The increase in International and U.S. Floater Contract Drilling Services
assets was due to an increase in temporary cash investments ($301.6 million).
This increase was partially offset by the sale of a jackup rig ($18.0 million
net book value), normal depreciation during 2003 ($103.6 million), a decrease in
accounts receivable due to lower activity and adjustments to goodwill during
2003 primarily resulting from the release of a pre-acquisition tax-related
contingency related to the merger with R&B Falcon Corporation. The decrease in
Gulf of Mexico Shallow and Inland Water assets was primarily due to normal
depreciation during 2003 ($23.2 million).
RESTRUCTURING CHARGES
In September 2002, we committed to a restructuring plan to eliminate our
engineering department located in Montrouge, France. We established a liability
of $2.8 million for the estimated severance-related costs associated with the
involuntary termination of 16 employees pursuant to this plan. The charge was
reported as operating and maintenance expense in the International and U.S.
Floater Contract Drilling Services segment in our consolidated statements of
operations. As of March 31, 2003, $2.2 million had been paid to 15 employees
whose positions were eliminated as a result of this plan. We anticipate that
substantially all amounts will be paid by the end of the second quarter of 2003.
In September 2002, we committed to a restructuring plan for a staff
reduction in Norway as a result of a decline in activity in that region. We
established a liability of $1.2 million for the estimated severance-related
costs associated with the involuntary termination of six employees pursuant to
this plan. The charge was reported as operating and maintenance expense in the
International and U.S. Floater Contract Drilling Services segment in our
consolidated statements of operations. As of March 31, 2003, $0.7 million had
been paid representing full or partial payments to five employees whose
positions have been eliminated as a result of this plan. We anticipate that
substantially all amounts will be paid by the end of the first quarter of 2005.
In September 2002, we committed to a restructuring plan to consolidate
certain functions and offices utilized in our Gulf of Mexico Shallow and Inland
Water segment. The plan resulted in the closure of an administrative office and
warehouse in Louisiana and relocation of most of the operations and
administrative functions previously conducted at that location. We established a
liability of $1.2 million for the estimated severance-related costs associated
with the involuntary termination of 57 employees pursuant to this plan. The
charge was reported as operating and maintenance expense in our consolidated
statements of operations. As of March 31, 2003, $1.1 million had been paid to 44
employees whose employment has been terminated as a result of this plan. We
anticipate that substantially all amounts will be paid by the end of the second
quarter of 2003.
OUTLOOK
Fleet utilization and average dayrates decreased within our International
and U.S. Floater Contract Drilling Services business segment during the first
quarter of 2003 compared with the fourth quarter of 2002. Fleet utilization
increased slightly and average dayrates decreased within our Gulf of Mexico
Shallow and Inland Water business segment during the first quarter of 2003
compared with the fourth quarter of 2002.
24
Comparative average dayrates and utilization figures are set forth in the
table below.
Three Months Ended
----------------------------------------
March 31, December 31, March 31,
2003 2002 2002
----------- -------------- -----------
AVERAGE DAYRATES (a)(b)(d)
INTERNATIONAL AND U.S. FLOATER CONTRACT DRILLING SERVICES SEGMENT:
Deepwater
5th Generation $ 183,800 $ 188,700 $ 185,800
Other Deepwater $ 113,600 $ 120,400 $ 120,800
Total Deepwater $ 147,500 $ 149,300 $ 148,100
Mid-Water $ 77,200 $ 84,400 $ 81,500
Jackups - Non-U.S. $ 56,900 $ 57,700 $ 58,700
Other Rigs $ 43,200 $ 36,200 $ 42,500
----------- -------------- -----------
Segment Total $ 91,600 $ 96,100 $ 90,100
----------- -------------- -----------
GULF OF MEXICO SHALLOW AND INLAND WATER SEGMENT:
Jackups and Submersibles $ 20,100 $ 21,900 $ 22,200
Inland Barges $ 17,600 $ 19,600 $ 19,200
Other Rigs $ 18,100 $ 18,700 $ 17,500
----------- -------------- -----------
Segment Total $ 18,500 $ 20,300 $ 19,600
----------- -------------- -----------
Total Mobile Offshore Drilling Fleet $ 69,100 $ 74,300 $ 72,500
=========== ============== ===========
UTILIZATION (a)(c)(d)
INTERNATIONAL AND U.S. FLOATER CONTRACT DRILLING SERVICES SEGMENT:
Deepwater
5th Generation 97% 96% 81%
Other Deepwater 76% 96% 82%
Total Deepwater 85% 96% 82%
Mid-Water 53% 57% 81%
Jackups - Non-U.S. 87% 83% 90%
Other Rigs 36% 48% 61%
----------- -------------- -----------
Segment Total 69% 74% 82%
----------- -------------- -----------
GULF OF MEXICO SHALLOW AND INLAND WATER SEGMENT:
Jackups and Submersibles 32% 33% 22%
Inland Barges 47% 44% 40%
Other Rigs 32% 29% 55%
----------- -------------- -----------
Segment Total 38% 37% 35%
----------- -------------- -----------
Total Mobile Offshore Drilling Fleet 55% 58% 61%
=========== ============== ===========
_________________
(a) Applicable to all rigs.
(b) Average dayrate is defined as contract drilling revenue earned per revenue earning day.
(c) Utilization is defined as the total actual number of revenue earning days as a percentage of the
total number of calendar days in the period.
(d) Effective January 1, 2003, the calculation of average dayrates and utilization was changed to include
all rigs based on contract drilling revenues. Prior periods have been restated to reflect the change.
25
Commodity prices have continued at relatively strong levels so far during
2003. Crude oil prices have been driven in large part by the war with Iraq and
the political turmoil in Venezuela, although prices have softened somewhat in
recent weeks. The cold winter weather and lower inventory levels have similarly
continued to support strong U.S. natural gas prices.
However, demand for our drilling rigs is driven in part by our clients'
perception of future commodity prices, coupled with a number of associated
factors including the availability of drilling prospects, relative production
costs, the stage of reservoir development and political environments. It is
unclear why the current strong commodity prices have not translated into
increased drilling activity, and we do not see any significant indication that
activity will increase materially in the near-term other than some positive
signs in the U.S. Gulf of Mexico shallow and inland water market sectors.
We see mixed signals in the short-term outlook for our deepwater fleet.
There are opportunities in the short-term for deepwater rigs in India and the
Far East, although we are concerned about the existing oversupply in the U.S.
Gulf of Mexico. However, we remain optimistic about the longer-term deepwater
outlook. The number of large discoveries in West Africa combined with continuing
exploratory interest in that region and growing demand for deepwater rigs in
India and the Far East are positive developments supporting long-term deepwater
activity.
The non-U.S. jackup market sector remains strong, and we look for this
activity level to continue through 2003. Opportunities in Mexico and India are
contributing to an already relatively strong market sector.
The mid-water floater business remains extremely weak as this segment
continues to be significantly oversupplied globally. While there should be an
increase in activity for mid-water rigs in the North Sea due to seasonal summer
work, the outlook there and elsewhere appears poor beyond that point. We expect
the global mid-water sector to continue to be oversupplied throughout 2003.
The recovery in the U.S. Gulf of Mexico shallow and inland market segment
has been limited to date, although we believe there have been recent signs of
improvement. We believe dayrates for shallow water jackups could be in a
position to strengthen, and the demand for jackups in Mexico and India should
also continue to indirectly help this sector as rigs leave the U.S. Gulf of
Mexico for these countries. We have also seen indications that U.S. natural gas
prices will remain strong over the near-term.
The contract drilling market historically has been highly competitive and
cyclical, and we are unable to predict the extent to which current market
conditions will continue. A decline in oil or gas prices could further reduce
demand for our contract drilling services and adversely affect both utilization
and dayrates.
In April 2003, members of the local branch of a Nigerian union initiated a
strike on four of our rigs working there. The labor strike began on April 16 on
the semisubmersible M.G. Hulme, Jr. and on April 19 on the semisubmersible rig
Sedco 709 and the jackup rigs Trident VI and Trident VIII. The striking workers
have now departed the rigs, and we are in the process of returning all four of
the rigs to service. The M.G. Hulme, Jr. has resumed operations. The three
remaining rigs are expected to resume operations within the next week, although
no assurance can be given that we will be able to return the three rigs to
service in that time frame. At full dayrates, the four rigs were contracted at
rates that would result in combined revenue of approximately $342,000 per day.
The rigs do not earn dayrates until they return to service.
We have a 60 percent ownership interest in an unconsolidated joint venture,
DDII LLC, which owns the Deepwater Frontier. A subsidiary of ConocoPhillips
("ConocoPhillips") owns the remaining 40 percent interest in DDII LLC. We share
management of the joint venture equally with ConocoPhillips, and DDII LLC is a
lessee in a synthetic lease financing facility entered into in connection with
the construction of the Deepwater Frontier. Pursuant to the lease financing, the
rig is owned by a special purpose entity and leased to the joint venture. We do
not own, manage or control the special purpose entity.
26
We are in discussions with ConocoPhillips to purchase their interest in
DDII LLC. If we were to purchase the remaining 40 percent interest we do not
already own, we would consolidate DDII LLC as a subsidiary in our financial
statements. In this event, the value of the rig and the debt and equity
financing associated with the lease would be reflected on our balance sheet as a
result of the application of the Financial Accounting Standards Board's ("FASB")
Interpretation ("FIN") 46, Consolidation of Variable Interest Entities. We
expect the amount of the debt and equity financing to be reflected on our
balance sheet to be approximately $165 million. No assurance can be given that
we will be able to complete the purchase of ConocoPhillips' interest in DDII
LLC.
In May 2003, we intend to repurchase and retire the entire $50.0 million
principal amount outstanding 9.41% Nautilus Class A2 Notes due May 2005. We
expect to fund the repurchases from existing cash balances and to record a
pre-tax loss on retirement of debt of approximately $6.0 million. No assurance
can be given that we will be able to complete this repurchase on the expected
terms or otherwise.
Each holder of our Zero Coupon Convertible Debentures due May 24, 2020 has
the option to require us to repurchase all or any part of such holder's
debentures on May 24, 2003 at a price of $628.57 per $1,000 principal amount.
Under the terms of the debentures, we have the option to pay for the debentures
with cash, our ordinary shares, or a combination of cash and shares, and have
elected to pay for the repurchase of the debentures solely with cash. If all
outstanding debentures are surrendered for repurchase, the aggregate cash
repurchase price will be approximately $544.0 million. We expect that virtually
all of the holders of the Zero Coupon Convertible Debentures will exercise their
put option in May 2003. If all outstanding debentures are surrendered for
repurchase, we would recognize additional expense of approximately $11 million
as a pre-tax loss on retirement of debt to fully amortize the remaining debt
issue costs related to these debentures. We intend to pay the repurchase price
from existing cash balances. The debentures are convertible into 8.1566 shares
of our ordinary shares per $1,000 principal amount, subject to adjustment under
certain circumstances.
During the quarter ended March 31, 2003, we deferred costs primarily
related to mobilizations and contract preparation of $22.8 million and
recognized amortization expense of previously deferred mobilization and contract
preparation costs of $17.8 million. We expect to defer approximately $19.0
million in mobilization and contract preparation costs and to amortize to
expense approximately $27.0 million in the second quarter of 2003. Our
expectations are based upon certain of our rigs being awarded contracts for
which bids have been submitted and for those contracts that have been awarded to
begin at the contractual start date. We cannot provide any assurance that the
contracts under bid will be awarded to us or that awarded contracts will begin
when anticipated. As such, actual cost deferrals and amortizations could vary
from these estimates.
Our income tax returns are subject to review and examination in the various
jurisdictions in which we operate. The U.S. Internal Revenue Service is
currently auditing the years 1999, the year we became a Cayman Islands company,
and 2000. In addition, other tax authorities have examined the amounts of income
and expense subject to tax in their jurisdiction for prior periods. We are
currently contesting additional assessments, which have been asserted, and may
contest any future assessments. While the outcome of these assessments is not
presently known, we do not believe that the ultimate resolution of these
asserted income tax liabilities will have a material adverse effect on our
business or consolidated financial position.
As of April 29, 2003, approximately 58 percent and 27 percent of our
International and U.S. Floater Contract Drilling Services segment fleet days
were committed for the remainder of 2003 and for the year 2004, respectively.
For our Gulf of Mexico Shallow and Inland Water segment, which has traditionally
operated under short-term contracts, committed fleet days were approximately 5
percent for the remainder of 2003 and none are currently committed for the year
2004.
27
LIQUIDITY AND CAPITAL RESOURCES
SOURCES AND USES OF CASH
Three Months Ended
March 31,
-------------------
2003 2002 Change
------- ---------- ----------
(In millions)
NET CASH PROVIDED BY OPERATING ACTIVITIES
Net income (loss) $ 47.2 $(1,286.4) $ 1,333.6
Depreciation 126.8 125.6 1.2
Other non-cash items 32.0 1,348.1 (1,316.1)
Changes in working capital items (15.2) (25.3) 10.1
------- ---------- ----------
$190.8 $ 162.0 $ 28.8
======= ========== ==========
Cash generated from net income items adjusted for non-cash activity
increased $18.7 million. Cash provided by working capital items increased $10.1
million due to lower activity resulting in a reduction in accounts receivable
coupled with an increase in interest payable due to the termination of our
interest rate swaps in 2003 (see "-Derivative Instruments") partially offset by
a decrease in income tax payable and an increase in other current assets
resulting from prepayment of annual insurance premiums.
Three Months Ended
March 31,
----------------
2003 2002 Change
------- ------- --------
(In millions)
NET CASH USED IN INVESTING ACTIVITIES
Capital expenditures $(24.4) $(47.7) $ 23.3
Proceeds from disposal of assets 2.2 43.4 (41.2)
Other, net 1.4 (3.6) 5.0
------- ------- --------
$(20.8) $ (7.9) $ (12.9)
======= ======= ========
Net cash used in investing activities increased for the three months ended
March 31, 2003 as compared to the same period in the previous year as a result
of the reduction in proceeds from asset sales, which was partially offset by the
reduction in current quarter capital expenditures (see "-Capital Expenditures").
Three Months Ended
March 31,
------------------
2003 2002 Change
-------- -------- -------
(In millions)
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES
Repayments under commercial paper program $ - $(326.4) $326.4
Cash received from termination of interest rate swaps 173.5 - 173.5
Repayments of debt obligations (47.8) (85.0) 37.2
Other, net 10.5 (8.0) 18.5
-------- -------- -------
$ 136.2 $(419.4) $ 555.6
======== ======== =======
We repaid $326.4 million under our commercial paper program during the
quarter ended March 31, 2002 while no such payment was made for the same period
in 2003. For the first quarter of 2003, we received interest rate swap
termination proceeds of $173.5 million (see "-Derivative Instruments"). The
decrease in repayments of debt obligations of $37.2 million was due to early
repayment of secured rig financing on the Trident IX and Trident 16 of $50.6
million in 2002 partially offset by an increase in scheduled debt payments of
$13.4 million during the first quarter of 2003. The increase in cash provided in
other, net is due to $8.2 million in consent payments in March 2002 related to
the exchange of our notes for R&B Falcon notes as well as an increase of $2.2
million in proceeds from the
28
issuance of shares to the Employee Share Purchase Program. Additionally,
dividends of $9.6 million were paid in the first quarter of 2002. Payment of
dividends was discontinued after the second quarter of 2002.
CAPITAL EXPENDITURES
Capital expenditures totaled $24.4 million during the three months ended
March 31, 2003. During 2003, we expect to spend between $130.0 million and
$150.0 million on our existing fleet, corporate infrastructure and major
upgrades. A substantial majority of our expected capital expenditures in 2003
relates to the International and U.S. Floater Contract Drilling Services
segment.
We intend to fund the cash requirements relating to our capital
expenditures through available cash balances, cash generated from operations and
asset sales. We also have available borrowings under our revolving credit
agreements and commercial paper program (see "-Sources of Liquidity") and may
engage in other commercial bank or capital market financings.
ACQUISITIONS AND DISPOSITIONS
From time to time, we review possible acquisitions or dispositions of
businesses and drilling units and may in the future make significant capital
commitments for such purposes. Any such acquisition could involve the payment by
us of a substantial amount of cash or the issuance of a substantial number of
additional ordinary shares or other securities. We would likely fund the cash
portion of any such acquisition through cash balances on hand, the incurrence of
additional debt, sales of assets, ordinary shares or other securities or a
combination thereof. In addition, from time to time, we review possible
dispositions of drilling units.
In January 2003, in our International and U.S. Floater Contract Drilling
Services segment, we completed the sale of a jackup rig, the RBF 160, for net
proceeds of $13.0 million and recognized a net after-tax gain of $0.2 million.
The proceeds were received in December 2002.
During the three months ended March 31, 2003, we settled an insurance claim
and sold certain other assets for net proceeds of approximately $2.2 million and
recorded net after-tax gains of $1.2 million in our International and U.S.
Floater Contract Drilling Services segment.
We continue to proceed with our previously announced plans to pursue an
initial public offering of our Gulf of Mexico Shallow and Inland Water business.
Our plan is to separate this business from Transocean and establish it as a
publicly traded company. We are proceeding with our plans to reorganize TODCO as
the entity that owns this business in preparation of the offering. We expect to
complete the initial public offering when market conditions warrant, subject to
various factors. Given the current general uncertainty in the equity and U.S.
natural gas drilling markets, we are unsure when the transaction could be
completed on terms acceptable to us. See "-Overview."
SOURCES OF LIQUIDITY
Our primary sources of liquidity in the first quarter of 2003 were our cash
flows from operations and proceeds from the termination of our interest rate
swaps. Primary uses of cash were debt repayment and capital expenditures. At
March 31, 2003, we had $1,520.4 million in cash and cash equivalents.
We anticipate that we will rely primarily upon existing cash balances and
internally generated cash flows to maintain liquidity in 2003, as cash flows
from operations are expected to be positive and, together with existing cash
balances, adequate to fulfill anticipated obligations, including the potential
obligation to repurchase the Zero Coupon Convertible Debentures at the option of
the holders. See Notes 3 and 11 to our condensed consolidated financial
statements. From time to time, we may also use bank lines of credit and
commercial paper to maintain liquidity for short-term cash needs.
29
We intend to use the proceeds from the initial public offering of our Gulf
of Mexico Shallow and Inland Water business as well as any proceeds from asset
sales (see "-Acquisitions and Dispositions") to further reduce our debt
balances.
We intend to use cash from operations primarily to pay debt as it comes due
and to fund capital expenditures. If we seek to reduce our debt other than
through scheduled maturities, we could do so through repayment of bank
borrowings or through repurchases or redemptions of, or tender offers for, debt
securities. At March 31, 2003 and December 31, 2002, our total debt was
$4,619.8 million and $4,678.0 million, respectively. We have significantly
reduced capital expenditures compared to prior years due to the completion of
our newbuild program in 2001. During the first quarter of 2003, we reduced net
debt, defined as total debt less swap receivables and cash and cash equivalents,
by $183.1 million. The components of net debt at carrying value were as follows
(in millions):
March 31, December 31,
2003 2002
----------- --------------
Total Debt $ 4,619.8 $ 4,678.0
Less: Cash and cash equivalents (1,520.4) (1,214.2)
Swap receivables - (181.3)
We believe net debt provides useful information regarding the level of our
indebtedness by reflecting cash and investments that could be used to repay
debt. Net debt has been consistently reduced since 2001 due to the fact that
cash flows, primarily from operations and asset sales, have been greater than
that needed for capital expenditures.
Our internally generated cash flow is directly related to our business and
the market segments in which we operate. Should the drilling market deteriorate
further, or should we experience poor results in our operations, cash flow from
operations may be reduced. However, we have continued to generate positive cash
flow from operating activities over recent years.
We have access to $800 million in bank lines of credit under two revolving
credit agreements, a 364-day revolving credit agreement providing for $250
million in borrowings and expiring in December 2003 and a five-year revolving
credit agreement providing for $550 million in borrowings and expiring in
December 2005. These credit lines are used primarily to back our $800 million
commercial paper program and may also be drawn on directly. As of March 31,
2003, none of the credit line capacity was utilized.
The bank credit lines require compliance with various covenants and
provisions customary for agreements of this nature, including an interest
coverage ratio and leverage ratio, both as defined by the credit agreements, of
not less than three to one and not greater than 40 percent, respectively. In
calculating the leverage ratio, the credit agreements specifically exclude the
impact on total capital of all non-cash goodwill impairment charges recorded in
compliance with SFAS 142 (see Note 2 to our condensed consolidated financial
statements). Other provisions of the credit agreements include limitations on
creating liens, incurring debt, transactions with affiliates, sale/leaseback
transactions and mergers and sale of substantially all assets. Should we fail to
comply with these covenants, we would be in default and may lose access to these
facilities. A loss of the bank facilities would also cause us to lose access to
the commercial paper markets. We are also subject to various covenants under the
indentures pursuant to which our public debt was issued, including restrictions
on creating liens, engaging in sale/leaseback transactions and engaging in
merger, consolidation or reorganization transactions. A default under our public
debt could trigger a default under our credit lines and cause us to lose access
to these facilities. See Note 8 to our consolidated financial statements in our
Annual Report on Form 10-K for the year ended December 31, 2002 for a
description of our credit agreements and debt securities.
In April 2001, the Securities and Exchange Commission ("SEC") declared
effective our shelf registration statement on Form S-3 for the proposed offering
from time to time of up to $2.0 billion in gross proceeds of senior or
subordinated debt securities, preference shares, ordinary shares and warrants to
purchase debt securities, preference shares, ordinary shares or other
securities. At March 31, 2003, $1.6 billion in gross proceeds of securities
remained unissued under the shelf registration statement.
30
Our access to commercial paper, debt and equity markets may be reduced or
closed to us due to a variety of events, including, among others, downgrades of
ratings of our debt and commercial paper, industry conditions, general economic
conditions, market conditions and market perceptions of us and our industry.
Our contractual obligations in the table below include our debt obligations
at face value.
For the twelve months ending March 31,
---------------------------------------------------------
Total 2004 2005-2006 2007-2008 Thereafter
-------- ---------- ---------- ----------- ----------
(In millions)
CONTRACTUAL OBLIGATIONS
Debt $4,428.5 $ 1,062.6 $ 565.9 $ 500.0 $ 2,300.0
======== ========== ========== =========== ==========
The bondholders may, at their option, require us to repurchase the Zero
Coupon Convertible Debentures due 2020, the 1.5% Convertible Debentures due 2021
and the 7.45% Notes due 2027 in May 2003, May 2006 and April 2007, respectively.
With regard to both series of the Convertible Debentures, we have the option to
pay the repurchase price in cash, ordinary shares, or any combination of cash
and ordinary shares. We have elected to pay for the Zero Coupon Convertible
Debentures we repurchase in May 2003 with existing cash. The chart above assumes
that the holders of these Convertible Debentures and notes exercise the options
at the first available date. We expect virtually all of the holders of the Zero
Coupon Convertible Debentures will exercise their put option in May 2003 and, at
that time, we would recognize additional expense of approximately $11 million as
a loss on retirement of debt to fully amortize the remaining debt issue costs
related to these debentures. We are also required to repurchase the convertible
debentures at the option of the holders at other later dates as more fully
described in Note 8 to our consolidated financial statements in our Annual
Report on Form 10-K for the year ended December 31, 2002.
In April 2003, we repaid all of the $239.5 million principal amount
outstanding 6.5% Senior Notes in accordance with their scheduled maturities,
plus interest accrued and unpaid to the repayment date. We funded the repayment
from existing cash balances.
In May 2003, we intend to repurchase and retire all of the $50.0 million
principal amount outstanding 9.41% Nautilus Class A2 Notes due May 2005. We
expect to fund the repurchases from existing cash balances. No assurance can be
given that we will be able to complete this repurchase on the expected terms or
otherwise.
We have certain operating leases that have been previously discussed and
reported in our Annual Report on Form 10-K for the year ended December 31, 2002.
There have been no material changes in these previously reported leases.
31
At March 31, 2003, we had other commitments that we are contractually
obligated to fulfill with cash should the obligations be called. These
obligations consisted primarily of standby letters of credit and surety bonds,
that guarantee our performance as it relates to our drilling contracts,
insurance, tax and other obligations in various jurisdictions. Letters of credit
are issued under a number of facilities provided by several banks. The
obligations that are the subject of these surety bonds are geographically
concentrated in the United States, Brazil and Nigeria. These letters of credit
and surety bond obligations are not normally called as we typically comply with
the underlying performance requirement. The table below provides a list of these
obligations in U.S. dollar equivalents and their time to expiration. It should
be noted that these obligations could be called at any time prior to the
expiration dates.
For the twelve months ending March 31,
-------------------------------------------------------
Total 2004 2005-2006 2007-2008 Thereafter
------ ---------- ---------- ----------- ----------
(In millions)
OTHER COMMERCIAL COMMITMENTS
Standby Letters of Credit $ 61.2 $ 44.5 $ 12.3 $ 4.4 $ -
Surety Bonds 138.8 75.8 63.0 - -
Purchase Option Guarantees Joint Ventures (a) 208.9 208.9 - - -
Other Commitments 0.1 - 0.1 - -
------ ---------- ---------- ----------- ----------
Total $409.0 $ 329.2 $ 75.4 $ 4.4 $ -
====== ========== ========== =========== ==========
___________________________
(a) See "-Special Purpose Entities".
DERIVATIVE INSTRUMENTS
We have established policies and procedures for derivative instruments that
have been approved by our Board of Directors. These policies and procedures
provide for the prior approval of derivative instruments by our Chief Financial
Officer. From time to time, we may enter into a variety of derivative financial
instruments in connection with the management of our exposure to fluctuations in
foreign exchange rates and interest rates. We do not enter into derivative
transactions for speculative purposes; however, for accounting purposes, certain
transactions may not meet the criteria for hedge accounting.
As more fully described in Note 4 to our condensed consolidated financial
statements, we were a party to interest rate swap agreements with an aggregate
notional amount of $1.6 billion at December 31, 2002. We terminated these
agreements during the first quarter of 2003. As a result of these terminations,
we had an aggregate fair value adjustment of approximately $173.5 million
included in long-term debt in our condensed consolidated balance sheet, which is
being amortized as a reduction to interest expense over the life of the
underlying debt.
DD LLC, an unconsolidated joint venture in which we have a 50 percent
ownership interest, has entered into interest rate swaps with aggregate market
values netting to a liability of $5.0 million at March 31, 2003. Our interest in
these swaps is included in accumulated other comprehensive income, net of tax,
with corresponding reductions to deferred income taxes and investments in and
advances to joint ventures in our condensed consolidated balance sheet.
SPECIAL PURPOSE ENTITIES, SALE/LEASEBACK TRANSACTION AND RELATED PARTY
TRANSACTIONS
We have transactions with certain special purpose entities and related
parties and we are a party to a sale/leaseback transaction. These transactions
have been previously discussed and reported in our Annual Report on Form 10-K
for the year ended December 31, 2002.
In January 2003, Delta Towing LLC ("Delta Towing") failed to make its
scheduled quarterly interest payment of $1.7 million on the note receivable and
we signed a 90-day waiver of the terms requiring payment of interest. In April
2003, Delta Towing failed to make their scheduled quarterly interest payment. In
April 2003, Delta Towing also failed to make a quarterly interest payment
originally due in January 2003 that was deferred to April as a result of the
90-day waiver signed in January 2003. We consider Delta Towing to be in default
but believe future cash flows will result in payment ultimately being received.
We are in discussions with ConocoPhillips to purchase their interest in
DDII LLC. See "-Outlook."
There have been no other material developments with regards to the special
purpose entities, sale/leaseback transaction or other related party
transactions.
32
NEW ACCOUNTING PRONOUNCEMENTS
In January 2003, the FASB issued FIN 46, Consolidation of Variable Interest
Entities. FIN 46 requires companies with a variable interest in a variable
interest entity to apply this guidance to that entity as of the beginning of the
first interim period beginning after June 15, 2003 for existing interests and
immediately for new interests. The application of the guidance could result in
the consolidation of a variable interest entity. We are evaluating the impact of
this interpretation on our consolidated financial position and results of
operations.
Effective January 2003, we implemented EITF 99-19, Reporting Revenues Gross
as a Principal versus Net as an Agent. As a result of the implementation of the
EITF, the costs incurred and charged to our clients on a reimbursable basis are
recognized as operating and maintenance expense. In addition, the amounts
billed to our clients associated with these reimbursable costs are being
recognized as client reimbursable revenue. We expect client reimbursable
revenues and operating and maintenance expense to be between $80 million and
$100 million as a result of implementation of EITF 99-19. The change in
accounting principle will have no effect on our results of operations or
consolidated financial position. Prior periods have not been reclassified, as
these amounts were not material.
FORWARD-LOOKING INFORMATION
The statements included in this quarterly report regarding future financial
performance and results of operations and other statements that are not
historical facts are forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. Statements to the effect that the Company or management "anticipates,"
"believes," "budgets," "estimates," "expects," "forecasts," "intends," "plans,"
"predicts," or "projects" a particular result or course of events, or that such
result or course of events "could," "might," "may," "scheduled" or "should"
occur, and similar expressions, are also intended to identify forward-looking
statements. Forward-looking statements in this quarterly report include, but are
not limited to, statements involving payment of severance costs, potential
revenues, increased expenses, the effect on revenues and expenses of the change
in accounting treatment for client reimbursables, client drilling programs,
supply and demand, utilization rates, dayrates, planned shipyard projects,
expected downtime, opportunities for deepwater rigs in India and the Far East,
positive signs in the U.S. Gulf of Mexico shallow and inland water sector,
deepwater, mid-water and the shallow and inland water markets, market outlooks
for our various geographical operating sectors, the non-U.S. jackup market
sector, client interest in the Gulf of Mexico Shallow and Inland Water barge
rigs, future activity in the International and U. S. Floater Contract Drilling
Services and Gulf of Mexico Shallow and Inland Water segments, the possible
purchase of the remaining interest in the joint venture that owns Deepwater
Frontier and related consequences, the effect of the strike in Nigeria, the
outcome and effect of the U.S. Internal Revenue Service audit and the various
tax assessments, deferred costs, the planned initial public offering of our Gulf
of Mexico Shallow and Inland Water business (including the timing of the
offering and portion sold), the U.S. gas drilling market, planned asset sales,
the Company's other expectations with regard to market outlook, expected capital
expenditures, results and effects of legal proceedings, liabilities for tax
issues, liquidity, positive cash flow from operations, the exercise of the
option of holders of Zero Coupon Convertible Debentures or the 1.5% Convertible
Debentures to require the Company to repurchase the debentures, the repurchase
of the 9.41% Nautilus Class A2 Notes due May 2005, the source of funds for the
repurchase prices, receipt of principal and interest on debt owed to the Company
by Delta Towing, adequacy of cash flow for 2003 obligations, effects of
accounting changes, and the timing and cost of completion of capital projects.
Such statements are subject to numerous risks, uncertainties and assumptions,
including, but not limited to, worldwide demand for oil and gas, uncertainties
relating to the level of activity in offshore oil and gas exploration and
development, exploration success by producers, oil and gas prices (including
U.S. natural gas prices), securities market conditions, demand for offshore and
inland water rigs, competition and market conditions in the contract drilling
industry, our ability to successfully integrate the operations of acquired
businesses, delays or terminations of drilling contracts due to a number of
events, delays or cost overruns on construction and shipyard projects and
possible cancellation of drilling contracts as a result of delays or
performance, our ability to enter into and the terms of future contracts, the
availability of qualified personnel, labor relations and the outcome of
negotiations with unions representing workers, operating hazards, political and
other uncertainties inherent in non-U.S. operations (including exchange and
currency fluctuations), risks of war, terrorism and cancellation or
unavailability of certain insurance coverage, the impact of governmental laws
and regulations, the adequacy of sources of liquidity, the effect and results of
litigation, audits and contingencies and other factors discussed in our Annual
Report on Form 10-K for the year ended December 31, 2002 and in the Company's
other filings with the SEC, which are available free of charge on the SEC's
website at www.sec.gov. Should one or more of these risks or uncertainties
materialize, or should underlying
33
assumptions prove incorrect, actual results may vary materially from those
indicated. You should not place undue reliance on forward-looking statements.
Each forward-looking statement speaks only as of the date of the particular
statement, and we undertake no obligation to publicly update or revise any
forward-looking statements.
34
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
INTEREST RATE RISK
Our exposure to market risk for changes in interest rates relates primarily
to our long-term and short-term debt obligations. The table below presents
scheduled debt maturities and related weighted-average interest rates for each
of the twelve-month periods ending March 31 relating to debt obligations as of
March 31, 2003. Weighted-average variable rates are based on LIBOR rates at
March 31, 2003, plus applicable margins.
At March 31, 2003 (in millions, except interest rate percentages):
Scheduled Maturity Date (a) (b) Fair Value
-------------------------------------------------------------------- ----------
2004 2005 2006 2007 2008 Thereafter Total 03/31/03
------- ------- ------- ------- ------- ------------ --------- ----------
Total debt
Fixed Rate $912.6 $ 45.5 $407.9 $400.0 $100.0 $ 2,300.0 $4,166.0 $ 4,608.1
Average interest rate 4.6% 7.3% 7.1% 1.5% 7.5% 7.5% 6.2%
Variable Rate $150.0 $112.5 - - - - $ 262.5 $ 262.5
Average interest rate 2.1% 2.1% - - - - 2.1%
__________________________
(a) Maturity dates of the face value of our debt assumes the put options on the Zero Coupon
Convertible Debentures, 1.5% Convertible Debentures and 7.45% Notes will be exercised in May 2003,
May 2006 and April 2007, respectively.
(b) Expected maturity amounts are based on the face value of debt.
At March 31, 2003, we had approximately $262.5 million of variable rate
debt at face value (six percent of total debt at face value). This variable
rate debt represented term bank debt. Given outstanding amounts as of that date,
a one percent rise in interest rates would result in an additional $2.0 million
in interest expense per year. Offsetting this, a large part of our cash
investments would earn commensurately higher rates of return. Using March 31,
2003 cash investment levels, a one percent increase in interest rates would
result in approximately $15.2 million of additional interest income per year.
FOREIGN EXCHANGE RISK
Our international operations expose us to foreign exchange risk. We use a
variety of techniques to minimize the exposure to foreign exchange risk. Our
primary foreign exchange risk management strategy involves structuring client
contracts to provide for payment in both U.S. dollars and local currency. The
payment portion denominated in local currency is based on anticipated local
currency requirements over the contract term. Due to various factors, including
local banking laws, other statutory requirements, local currency convertibility
and the impact of inflation on local costs, actual foreign exchange needs may
vary from those anticipated in the client contracts, resulting in partial
exposure to foreign exchange risk. Fluctuations in foreign currencies have
minimal impact on overall results. In situations where the primary strategy is
not entirely attainable, foreign exchange derivative instruments, specifically
foreign exchange forward contracts or spot purchases, may be used. We do not
enter into derivative transactions for speculative purposes. At March 31, 2003,
we had no material open foreign exchange contracts.
In January 2003, Venezuela implemented foreign exchange controls that limit
our ability to convert local currency into U.S. dollars and transfer excess
funds out of Venezuela. Our drilling contracts in Venezuela typically call for
payments to be made in local currency, even when the dayrate is denominated in
U.S. dollars. The exchange controls could also result in an artificially high
value being placed on the local currency.
35
ITEM 4. CONTROLS AND PROCEDURES
Within the 90 days prior to the date of this report, the Company carried
out an evaluation, under the supervision and with the participation of the
Company's management, including the Chief Executive Officer and Chief Financial
Officer, of the effectiveness of the design and operation of the Company's
disclosure controls and procedures pursuant to Exchange Act Rule 13a-14. Based
on that evaluation, the Chief Executive Officer and the Chief Financial Officer
concluded that the Company's disclosure controls and procedures are effective in
timely alerting them to material information relating to the Company (including
its consolidated subsidiaries) required to be included in the Company's periodic
SEC filings. Subsequent to the date of their evaluation, there were no
significant changes in the Company's internal controls or in other factors that
could significantly affect the internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
36
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In 1990 and 1991, two of our subsidiaries were served with various
assessments collectively valued at approximately $7 million from the
municipality of Rio de Janeiro, Brazil to collect a municipal tax on services.
We believe that neither subsidiary is liable for the taxes and have contested
the assessments in the Brazilian administrative and court systems. The Brazil
Supreme Court rejected our appeal of an adverse lower court's ruling with
respect to a June 1991 assessment, which was valued at approximately $6 million.
We plan to challenge the assessment in a separate proceeding. We recently
received a favorable ruling from the Brazil Superior Court of Justice in
connection with a disputed August 1990 assessment. We are awaiting a ruling from
the Taxpayer's Council in connection with an October 1990 assessment. If our
defenses are ultimately unsuccessful, we believe that the Brazilian
government-controlled oil company, Petrobras, has a contractual obligation to
reimburse us for municipal tax payments required to be paid by them. We do not
expect the liability, if any, resulting from these assessments to have a
material adverse effect on our business or consolidated financial position.
In March 1997, an action was filed by Mobil Exploration and Producing U.S.
Inc. and affiliates, St. Mary Land & Exploration and affiliates and Samuel Geary
and Associates Inc. against us, certain underwriters at Lloyd's (the
"Underwriters") and an insurance broker in the 16th Judicial District Court of
St. Mary Parish, Louisiana. The plaintiffs alleged damages amounting to in
excess of $50 million in connection with the drilling of a turnkey well in 1995
and 1996. The case was tried before a jury in January and February 2000, and the
jury returned a verdict of approximately $30 million in favor of the plaintiffs
for excess drilling costs, loss of insurance proceeds, loss of hydrocarbons,
expenses and interest. We and the Underwriters appealed such judgment, and the
Louisiana Court of Appeals reduced the amount for which we may be responsible to
less than $10 million. The plaintiffs requested that the Supreme Court of
Louisiana consider the matter and reinstate the original verdict. We and the
Underwriters also appealed to the Supreme Court of Louisiana requesting that the
Court reduce the verdict or, in the case of the Underwriters, eliminate any
liability for the verdict. Prior to the Supreme Court of Louisiana ruling on all
such petitions, we settled with the St. Mary group of plaintiffs and the State
of Louisiana. Thereafter, the Supreme Court of Louisiana denied the applications
for consideration by the remaining plaintiffs but has not yet ruled on our
application or the application of the Underwriters. The plaintiffs may seek
rehearing of the decision. We believe that any amounts, apart from a small
deductible, paid in settlement or which may ultimately be paid to the remaining
plaintiffs are covered by relevant primary and excess liability insurance
policies. However, the insurers and Underwriters have denied all coverage. We
have instituted litigation against those insurers and Underwriters to enforce
our rights under the relevant policies. While we cannot predict the outcome of
such litigation, we do not expect that the ultimate outcome of this case will
have a material adverse effect on our business or consolidated financial
position.
We have certain other actions or claims pending that have been previously
discussed and reported in our Annual Report on Form 10-K for the year ended
December 31, 2002 and our other reports filed with the Securities and Exchange
Commission. There have been no material developments in these previously
reported matters. We are involved in a number of other lawsuits, all of which
have arisen in the ordinary course of our business. We do not believe that
ultimate liability, if any, resulting from any such other pending litigation
will have a material adverse effect on our business or consolidated financial
position. There can be no assurance that our beliefs or expectations as to the
outcome or effect of any lawsuit or other litigation matter will prove correct
and the eventual outcome of these matters could materially differ from
management's current estimates.
37
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
The following exhibits are filed in connection with this Report:
NUMBER DESCRIPTION
- ------ -----------
*3.1 Memorandum of Association of Transocean Inc., as amended (incorporated by
reference to Annex E to the Joint Proxy Statement/Prospectus dated October
30, 2000 included in a 424(b)(3) prospectus filed by the Company on
November 1, 2000)
*3.2 Articles of Association of Transocean Inc., as amended (incorporated by
reference to Annex F to the Joint Proxy Statement/Prospectus dated October
30, 2000 included in a 424(b)(3) prospectus filed by the Company on
November 1, 2000)
*3.3 Certificate of Incorporation on Change of Name to Transocean Inc.
(incorporated by reference to Exhibit 3.3 to the Company's Form 10-Q for
the quarter ended June 30, 2002)
4.1 364-Day Credit Agreement dated as of December 26, 2002 among the Company,
the Lenders party thereto, SunTrust Bank, as Administrative Agent, ABN AMRO
Bank, N.V. and The Royal Bank of Scotland plc, as Co-Syndication Agents,
Bank of America, N.A. and Wells Fargo Bank Texas, National Association, as
Co-Documentation Agents, and Citibank, N.A., Credit Lyonnais New York
Branch and HSBC Bank USA, as Managing Agents
99.1 CEO Certification Pursuant to Section 906 of the Sarbanes - Oxley Act of
2002
99.1 CFO Certification Pursuant to Section 906 of the Sarbanes - Oxley Act of
2002
_________________________
* Incorporated by reference as indicated.
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K on January 2, 2003
(information furnished not filed) announcing that the "Monthly Fleet Update"
report as of January 1, 2003 was available on the Company's website and a
Current Report on Form 8-K on January 30, 2003 (information furnished not filed)
announcing that the "Monthly Fleet Update" report as of January 30, 2003 was
available on the Company's website.
38
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, hereunto duly authorized, on May 9, 2003.
TRANSOCEAN INC.
By: /s/ Gregory L. Cauthen
------------------------
Gregory L. Cauthen
Vice President, Chief Financial Officer
and Treasurer
(Principal Financial Officer)
By: /s/ Brenda S. Masters
-----------------------
Brenda S. Masters
Vice President and Controller
(Principal Accounting Officer)
39
CERTIFICATIONS
Principal Executive Officer
---------------------------
I, Robert L. Long, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Transocean Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) Designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly
report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this quarterly report (the "Evaluation Date"); and
c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
Date: May 9, 2003 /s/ Robert L. Long
-------------------------------------
Robert L. Long
President and Chief Executive Officer
40
Principal Financial Officer
---------------------------
I, Gregory L. Cauthen, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Transocean Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) Designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly
report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this quarterly report (the "Evaluation Date"); and
d) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
Date: May 9, 2003 /s/ Gregory L. Cauthen
-------------------------------
Gregory L. Cauthen
Senior Vice President, Chief
Financial Officer and Treasurer
41
EXECUTION
COUNTERPART
================================================================================
364-DAY CREDIT AGREEMENT
DATED AS OF
DECEMBER 26, 2002
AMONG
TRANSOCEAN INC.,
THE LENDERS PARTIES HERETO,
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT,
ABN AMRO BANK, N.V. AND THE ROYAL BANK OF SCOTLAND PLC,
AS CO-SYNDICATION AGENTS,
BANK OF AMERICA, N.A. AND
WELLS FARGO BANK TEXAS, NATIONAL ASSOCIATION,
AS CO-DOCUMENTATION AGENTS,
AND
CITIBANK, N.A.,
CREDIT LYONNAIS NEW YORK BRANCH AND HSBC BANK USA,
AS MANAGING AGENTS
SUNTRUST ROBINSON HUMPHREY CAPITAL MARKETS,
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND BOOK RUNNER
================================================================================
364-DAY CREDIT AGREEMENT
------------------------
THIS 364-DAY CREDIT AGREEMENT (the "Agreement"), dated as of December 26,
2002, among TRANSOCEAN INC. (the "Borrower"), a Cayman Islands company, the
lenders from time to time parties hereto (each a "Lender" and collectively, the
"Lenders"), SUNTRUST BANK, a Georgia banking corporation ("STB"), as
administrative agent for the Lenders (in such capacities, the "Administrative
Agent"), ABN AMRO BANK N.V. and THE ROYAL BANK OF SCOTLAND PLC, as
co-syndication agents for the Lenders (in such capacities, the "Co-Syndication
Agents"), BANK OF AMERICA, N.A. and WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as co-documentation agents for the Lenders (in such capacities, the
"Co-Documentation Agents"), CITIBANK, N.A., CREDIT LYONNAIS NEW YORK BRANCH and
HSBC BANK USA, as managing agents for the Lenders (in such capacities, the
"Managing Agents"), and STB, as issuing bank of the Letters of Credit hereunder
(STB and any other Lender that issues a Letter of Credit hereunder, in such
capacity, an "Issuing Bank").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish in its favor
a 364-day revolving credit facility in the aggregate principal amount of U.S.
$250,000,000, pursuant to which facility revolving loans would be made to, and
letters of credit would be issued for the account of, the Borrower;
WHEREAS, the Borrower has further requested that, at its option, revolving
loans outstanding at the end of the initial revolving credit facility period up
to an aggregate principal amount of $125,000,000 be converted to term loans
maturing one year after the date of such conversion;
WHEREAS, the Lenders are willing to make such credit facilities available
to the Borrower on the terms and subject to the conditions and requirements
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS; INTERPRETATION.
Section 1.1. Definitions. Unless otherwise defined herein, the
following terms shall have the following meanings, which meanings shall be
equally applicable to both the singular and plural forms of such terms:
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Revolving Loans
or Eurocurrency Term Loans for any Interest Period, a rate per annum determined
in accordance with the following formula:
Adjusted LIBOR = LIBOR Rate for such Interest Period
----------------------------------------
1.00 - Statutory Reserve Rate
"Adjusted LIBOR Loan" means a Eurocurrency Revolving Loan or Eurocurrency
Term Loan bearing interest at a rate based on Adjusted LIBOR as provided in
Section 2.8(b).
"Administrative Agent" means SunTrust Bank, acting in its capacity as
administrative agent for the Lenders, and any successor Administrative Agent
appointed hereunder pursuant to Section 9.7.
"Agreement" means this 364-Day Credit Agreement, as the same may be
amended, restated and supplemented from time to time.
"Applicable Facility Fee Rate" means for any day, at such times as a debt
rating (either express or implied) by S&P or Moody's (or in the event that both
cease the issuance of debt ratings generally, such other ratings agency agreed
to by the Borrower and the Administrative Agent) is in effect on the Borrower's
non-credit enhanced senior unsecured long-term debt, the percentage per annum
set forth opposite such debt rating:
Debt Rating Percentage
------------ ----------
A+/A1 or above 0.060%
A/A2 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
BBB/Baa2 0.125%
BBB-/Baa3 or below 0.175%
If the ratings issued by S&P and Moody's differ (i) by one rating, the higher
rating shall apply to determine the Applicable Facility Fee Rate, (ii) by two
ratings, the rating which falls between them shall apply to determine the
Applicable Facility Fee Rate, or (iii) by more than two ratings, the rating
immediately above the lower of the two ratings shall apply to determine the
Applicable Facility Fee Rate. The Borrower shall give written notice to the
Administrative Agent of any changes to such ratings, within three (3) Business
Days thereof, and any change to the Applicable Facility Fee Rate shall be
effective on the date of the relevant change. Notwithstanding the foregoing, if
the Borrower shall at any time fail to have in effect such a debt rating on the
Borrower's non-credit enhanced senior unsecured long-term debt, the Borrower
shall seek and obtain (if not already in effect), within thirty (30) days after
such debt rating first ceases to be in effect, a corporate credit rating or a
bank loan rating from Moody's or S&P, or both, and the Applicable Facility Fee
Rate shall thereafter be based on such ratings in the same manner as provided
herein with respect to the Borrower's senior unsecured long-term debt rating
(with the Applicable Facility Fee Rate in effect prior to the issuance of such
corporate credit
2
rating or bank loan rating being the same as the Applicable Facility Fee Rate in
effect at the time the senior unsecured long-term debt rating ceases to be in
effect).
"Applicable Margin" means, for any day, at such times as a debt rating
(either express or implied) by S&P or Moody's (or in the event that both cease
the issuance of debt ratings generally, such other ratings agency agreed to by
the Borrower and the Administrative Agent) is in effect on the Borrower's
non-credit enhanced senior unsecured long-term debt, the percentage per annum
set forth opposite such debt rating:
Debt Rating Percentage
------------ ----------
A+/A1 or above 0.190%
A/A2 0.230%
A-/A3 0.320%
BBB+/Baa1 0.475%
BBB/Baa2 0.600%
BBB-/Baa3 or below 0.725%
If the ratings issued by S&P and Moody's differ (i) by one rating, the higher
rating shall apply to determine the Applicable Margin, (ii) by two ratings, the
rating which falls between them shall apply to determine the Applicable Margin,
or (iii) by more than two ratings, the rating immediately above the lower of the
two ratings shall apply to determine the Applicable Margin. The Borrower shall
give written notice to the Administrative Agent of any changes to such ratings,
within three (3) Business Days thereof, and any change to the Applicable Margin
shall be effective on the date of the relevant change. Notwithstanding the
foregoing, if the Borrower shall at any time fail to have in effect such a debt
rating on the Borrower's non-credit enhanced senior unsecured long-term debt,
the Borrower shall seek and obtain (if not already in effect), within thirty
(30) days after such debt rating first ceases to be in effect, a corporate
credit rating or a bank loan rating from Moody's or S&P, or both, and the
Applicable Margin shall thereafter be based on such ratings in the same manner
as provided herein with respect to the Borrower's senior unsecured long-term
debt rating (with the Applicable Margin in effect prior to the issuance of such
corporate credit rating or bank loan rating being the same as the Applicable
Margin in effect at the time the senior unsecured long-term debt rating ceases
to be in effect).
"Applicable Utilization Fee Rate" means for any day, at such times as a
debt rating (either express or implied) by S&P or Moody's (or in the event that
both cease the issuance of debt ratings generally, such other ratings agency
agreed to by the Borrower and the Administrative Agent) is in effect on the
Borrower's non-credit enhanced senior unsecured long-term debt, the percentage
per annum set forth opposite such debt rating:
3
Debt Rating Percentage
------------ ----------
A+/A1 or above 0.075%
A/A2 0.100%
A-/A3 0.100%
BBB+/Baa1 0.125%
BBB/Baa2 0.125%
BBB-/Baa3 or below 0.150%
If the ratings issued by S&P and Moody's differ (i) by one rating, the higher
rating shall apply to determine the Applicable Utilization Fee Rate, (ii) by two
ratings, the rating which falls between them shall apply to determine the
Applicable Utilization Fee Rate, or (iii) by more than two ratings, the rating
immediately above the lower of the two ratings shall apply to determine the
Applicable Utilization Fee Rate. The Borrower shall give written notice to the
Administrative Agent of any changes to such ratings, within three (3) Business
Days thereof, and any change to the Applicable Utilization Fee Rate shall be
effective on the date of the relevant change. Notwithstanding the foregoing, if
the Borrower shall at any time fail to have in effect such a debt rating on the
Borrower's non-credit enhanced senior unsecured long-term debt, the Borrower
shall seek and obtain (if not already in effect), within thirty (30) days after
such debt rating first ceases to be in effect, a corporate credit rating or a
bank loan rating from Moody's or S&P, or both, and the Applicable Utilization
Fee Rate shall thereafter be based on such ratings in the same manner as
provided herein with respect to the Borrower's senior unsecured long-term debt
rating (with the Applicable Utilization Fee Rate in effect prior to the issuance
of such corporate credit rating or bank loan rating being the same as the
Applicable Utilization Fee Rate in effect at the time the senior unsecured
long-term debt rating ceases to be in effect).
"Application" means an application for a Letter of Credit as defined in
Section 2.14(b).
"Assignment Agreement" means an agreement in substantially the form of
Exhibit 10.10 whereby a Lender conveys part or all of its Commitment, Loans and
- --------------
participations in Letters of Credit to another Person that is, or thereupon
becomes, a Lender, or increases its Commitments, outstanding Loans and
outstanding participations in Letters of Credit, pursuant to Section 10.10.
"Base Rate" means for any day the greater of:
(i) the fluctuating commercial loan rate announced by the
Administrative Agent from time to time at its Atlanta, Georgia office (or other
corresponding office, in the case of any successor Administrative Agent) as its
prime rate or base rate for U.S. Dollar loans in the United States of America in
effect on such day (which base rate may not be the lowest rate charged by such
Lender on loans to any of its customers), with any change in the Base Rate
resulting from a change in such announced rate to be effective on the date of
the relevant change; and
4
(ii) the sum of (x) the rate per annum (rounded upwards, if
necessary, to the nearest 1/16th of 1%) equal to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the next Business Day, provided that (A)
if such day is not a Business Day, the rate on such transactions on the
immediately preceding Business Day as so published on the next Business Day
shall apply, and (B) if no such rate is published on such next Business Day, the
rate for such day shall be the average of the offered rates quoted to the
Administrative Agent by two (2) federal funds brokers of recognized standing on
such day for such transactions as selected by the Administrative Agent, plus (y)
a percentage per annum equal to one-half of one percent ( %) per annum.
"Base Rate Loan" means a Revolving Loan or Term Loan bearing interest prior
to maturity at the rate specified in Section 2.8(a).
"Borrower" means Transocean Inc., a company organized under the laws of the
Cayman Islands, and its successors.
"Borrowing" means any extension of credit of the same Type made by the
Lenders on the same date by way of Revolving Loans, a Competitive Loan or group
of Competitive Loans having a single Interest Period, a Letter of Credit, or, if
the Borrower exercises the Term Loan Option, the Term Loans, including any
Borrowing advanced, continued or converted. A Borrowing is "advanced" on the
day the Lenders advance funds comprising such Borrowing to the Borrower or a
Letter of Credit is issued, increased or extended, is "continued" (in the case
of Eurocurrency Revolving Loans or Eurocurrency Term Loans) on the date a new
Interest Period commences for such Borrowing, and is "converted" (in the case of
Eurocurrency Revolving Loans or Eurocurrency Term Loans) when such Borrowing is
changed from one Type of Loan to the other, all as requested by the Borrower
pursuant to Section 2.4.
"Business Day" means any day other than a Saturday or Sunday on which banks
are not authorized or required to close in Atlanta, Georgia or New York, New
York and, if the applicable Business Day relates to the advance or continuation
of, conversion into, or payment on a Eurocurrency Borrowing or Competitive
Borrowing, on which banks are dealing in Dollar deposits in the interbank
eurodollar market in London, England.
"Capitalized Lease Obligations" means, for any Person, the aggregate amount
of such Person's liabilities under all leases of real or personal property (or
any interest therein) which is required to be capitalized on the balance sheet
of such Person as determined in accordance with GAAP.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than twelve (12) months
from the date of acquisition, (ii) time deposits and certificates of deposits
maturing within one year from the date of acquisition thereof or repurchase
agreements with financial institutions whose short-term unsecured debt rating is
A or above as obtained from either S&P or Moody's, (iii) commercial paper or
Eurocommercial paper with a
5
rating of at least A-1 by S&P or at least P-1 by Moody's, with maturities of not
more than twelve (12) months from the date of acquisition, (iv) repurchase
obligations entered into with any Lender, or any other Person whose short-term
senior unsecured debt rating from S&P is at least A-1 or from Moody's is at
least P-1, which are secured by a fully perfected security interest in any
obligation of the type described in (i) above and has a market value of the time
such repurchase is entered into of not less than 100% of the repurchase
obligation of such Lender or such other Person thereunder, (v) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within twelve (12) months from the date of acquisition thereof or providing for
the resetting of the interest rate applicable thereto not less often than
annually and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's, and (vi) money market funds which have at
least $1,000,000,000 in assets and which invest primarily in securities of the
types described in clauses (i) through (v) above.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans, or Term Loans.
"Code" means the Internal Revenue Code of 1986, as amended.
"Co-Documentation Agents" means, collectively, Bank of America, N.A. and
Wells Fargo Bank Texas, National Association, in their capacities as
co-documentation agents for the Lenders, and any successor Co-Documentation
Agents appointed pursuant to Section 9.7; provided, however, that no such
Co-Documentation Agent shall have any duties, responsibilities, or obligations
hereunder in such capacity.
"Co-Syndication Agents" shall mean ABN AMRO Bank N.V. and The Royal Bank of
Scotland plc, acting in their capacities as co-syndication agents for the
Lenders, and any successor Co-Syndication Agents appointed hereunder pursuant to
Section 9.7; provided, however, that no such Co-Syndication Agents shall have
any duties, responsibilities, or obligations hereunder in such capacity.
"Collateral" means all property and assets of the Borrower in which the
Administrative Agent or the Collateral Agent is granted a Lien for the benefit
of the Lenders under the terms of Section 7.4.
"Collateral Account" means the cash collateral account for outstanding
undrawn Letters of Credit defined in Section 7.4(b).
"Collateral Agent" means STB acting in its capacity as collateral agent for
the Lenders, and any successor collateral agent appointed hereunder pursuant to
Section 9.7.
"Commitment" means, relative to any Lender, such Lender's obligations to
make Revolving Loans and participate in Letters of Credit pursuant to Sections
2.1 and 2.14, initially in the amount and percentage set forth opposite its
signature hereto or pursuant to Section 10.10,
6
as such obligations may be reduced or increased from time to time as expressly
provided pursuant to this Agreement.
"Commitment Termination Date" means the earliest of (i) December 24, 2003,
or such later date to which the Commitments have been extended pursuant to
Section 2.16, (ii) the date on which the Commitments are terminated in full or
reduced to zero pursuant to Section 2.15, and (iii) the occurrence of any Event
of Default described in Section 7.1(f) or (g) with respect to the Borrower or
the occurrence and continuance of any other Event of Default and either (x) the
declaration of the Loans to be due and payable pursuant to Section 7.2, or (y)
in the absence of such declaration, the giving of written notice by the
Administrative Agent, acting at the direction of the Required Lenders, to the
Borrower pursuant to Section 7.2 that the Commitments have been terminated.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.5.
Competitive Bid Rate" means, with respect to any Competitive Bid, the
Competitive Margin or the Competitive Fixed Rate, as applicable, offered by the
Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for Competitive
Bids in accordance with Section 2.5.
"Competitive Borrowing" means a Borrowing of a Competitive Loan or group of
Competitive Loans pursuant to Section 2.5.
"Competitive Fixed Rate" means, with respect to any Competitive Loan (other
than a Competitive Margin Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Competitive Fixed Rate Loan" means a Competitive Loan bearing interest at
a Competitive Fixed Rate.
"Competitive Loan" means a Competitive Margin Loan or a Competitive Fixed
Rate Loan made pursuant to Section 2.5.
"Competitive Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBOR Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBOR Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Competitive Margin Loan" means a Competitive Loan bearing interest
determined by reference to the LIBOR Rate and a Competitive Margin.
"Compliance Certificate" means a certificate in the form of Exhibit 6.6.
-----------
7
"Confidential Information Memorandum" shall mean the Confidential Executive
Summary of the Borrower dated November 2001, as the same may be amended,
restated and supplemented from time to time and distributed to the Lenders prior
to the Effective Date.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries, the sum of (a) net income or net loss (before discontinued
operations and income or loss resulting from extraordinary items), plus (b) the
sum of (i) Consolidated Interest Expense, (ii) income tax expense, (iii)
depreciation expense, (iv) amortization expense, and (v) other non-cash charges,
all determined in accordance with GAAP on a consolidated basis for the Borrower
and its Subsidiaries (excluding, in the case of the foregoing clauses (a) and
(b), any net income or net loss and expenses and charges of any SPVs or other
Persons that are not Subsidiaries), plus (c) dividends or distributions received
during such period by the Borrower and its Subsidiaries from SPVs and any other
Persons that are not Subsidiaries. For purposes of the foregoing, Consolidated
EBITDA for the Borrower and its Subsidiaries shall not include any such amounts
attributable to any Subsidiary or business acquired during such period by the
Borrower or any Subsidiary to the extent such amounts relate to any period prior
to the acquisition thereof.
"Consolidated Indebtedness" means all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated balance sheet of such
Persons prepared in accordance with GAAP.
"Consolidated Indebtedness to Total Capitalization Ratio" means, at any
time, the ratio of Consolidated Indebtedness at such time to Total
Capitalization at such time.
"Consolidated Interest Expense" means, for any period, total interest
expense of the Borrower and its Subsidiaries on a consolidated basis for such
period, in connection with Indebtedness, all as determined in accordance with
GAAP, but excluding capitalized interest expense and interest expense
attributable to expected federal income tax settlements. For purposes of the
foregoing, Consolidated Interest Expense for the Borrower and its Subsidiaries
shall not include any such interest expense attributable to any Subsidiary or
business acquired during such period by the Borrower or any Subsidiary to the
extent such interest expense relates to any period prior to the acquisition
thereof.
"Consolidated Net Assets" means, as of any date of determination, an amount
equal to the aggregate book value of the assets of the Borrower, its
Subsidiaries and, to the extent of the equity interest of the Borrower and its
Subsidiaries therein, SPVs at such time, minus the current liabilities of the
Borrower and its Subsidiaries, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth" means, as of any date of determination,
consolidated shareholders equity of the Borrower and its Subsidiaries determined
in accordance with GAAP (but excluding the effect on shareholders equity of (i)
cumulative foreign exchange translation adjustments and (ii) any non-cash asset
impairment charges taken by the Borrower solely as a result of the application
to the Borrower's financial statements of Financial Accounting Standards Board
Statement No. 142). For purposes of this definition, SPVs shall be accounted
for pursuant to the equity method of accounting.
8
"Controlling Affiliate" means for the Borrower, (i) any other Person that
directly or indirectly through one or more intermediaries controls, or is under
common control with, the Borrower (other than Persons controlled by the
Borrower), and (ii) any other Person owning beneficially or controlling ten
percent (10%) or more of the equity interests in the Borrower. As used in this
definition, "control" means the power, directly or indirectly, to direct or
cause the direction of management or policies of a Person (through ownership of
voting securities or other equity interests, by contract or otherwise).
"Currency Rate Protection Agreement" shall mean any foreign currency
exchange and future agreements, arrangements and options designed to protect
against fluctuations in currency exchange rates.
"Credit Documents" means this Agreement, the Notes, the Applications, the
Letters of Credit, and any Subsidiary Guaranties in effect from time to time.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"Dollar" and "U.S. Dollar" and the sign "$" mean lawful money of the United
States of America.
"Effective Date" means the date this Agreement shall become effective as
defined in Section 10.16.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating to any
Environmental Law ("Claims") or any permit issued under any Environmental Law,
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (ii)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to the
environment.
"Environmental Law" means any federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law now or hereafter in
effect, including any judicial or administrative order, consent, decree or
judgment, relating to the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, shall bear interest
at a rate determined by reference to (i) in the case of a Revolving Loan or
Revolving Borrowing, or a Term Loan or Term Loan Borrowing, Adjusted LIBOR and
the Applicable Margin, or (ii) in the case of a Competitive Loan or Competitive
Borrowing, the LIBOR Rate and the Competitive Margin.
9
"Eurocurrency Loan" means a Eurocurrency Revolving Loan, Eurocurrency Term
Loan, or a Competitive Margin Loan, as the case may be.
"Eurocurrency Revolving Loan" means a Revolving Loan bearing interest
before maturity at the rate specified in Section 2.8(b).
"Eurocurrency Term Loan" means a Term Loan bearing interest before maturity
at the rate specified in Section 2.8(b).
"Event of Default" means any of the events or circumstances specified in
Section 7.1.
"Existing 364-Day Revolving Credit Facility" means the 364-Day Credit
Agreement dated as of December 27, 2001, among the Borrower, the lenders parties
thereto, SunTrust Bank, as Administrative Agent, ABN AMRO Bank, N.V. and The
Royal Bank of Scotland plc, as Co-Syndication Agents, Bank of America, N.A., and
Wells Fargo Bank of Texas, National Association, as Documentation Agents, and
The Bank of Nova Scotia, Credit Lyonnais New York Branch, HSBC Bank USA, and
Westdeutsche Landesbank Girozentrale, New York Branch, as Managing Agents.
"Five-Year Credit Agreement" means the Credit Agreement dated as of
December 29, 2000, among the Borrower, the lenders party thereto, the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Senior Managing Agent, as the same may be amended, supplemented and restated
from time to time.
"Foreign Plan" means any pension, profit sharing, deferred compensation, or
other employee benefit plan, program or arrangement maintained by any foreign
Subsidiary of the Borrower which, under applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not include any
benefit provided by a foreign government or its agencies.
"GAAP" means generally accepted accounting principles from time to time in
effect as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the statements and pronouncements of the Financial Accounting Standards Board or
in such other statements, opinions and pronouncements by such other entity as
may be approved by a significant segment of the U.S. accounting profession.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
10
"Guarantor" means any Subsidiary of the Borrower required to execute and
deliver a Subsidiary Guaranty hereunder pursuant to Section 6.11, in each case
unless and until the relevant Subsidiary Guaranty is released pursuant to
Section 6.11.
"Guaranty" by any Person means all contractual obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business) of such Person guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or to purchase any
property or assets constituting security therefor, primarily for the purpose of
assuring the owner of such Indebtedness of the ability of the primary obligor to
make payment of such Indebtedness; or (ii) to advance or supply funds (x) for
the purchase or payment of such Indebtedness, or (y) to maintain working capital
or other balance sheet condition, or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness, in each case primarily
for the purpose of assuring the owner of such Indebtedness of the ability of the
primary obligor to make payment of such Indebtedness; or (iii) to lease
property, or to purchase securities or other property or services, of the
primary obligor, primarily for the purpose of assuring the owner of such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness; or (iv) otherwise to assure the owner of such Indebtedness of the
primary obligor against loss in respect thereof. For the purpose of all
computations made under this Agreement, the amount of a Guaranty in respect of
any Indebtedness shall be deemed to be equal to the amount that would apply if
such Indebtedness was the direct obligation of such Person rather than the
primary obligor or, if less, the maximum aggregate potential liability of such
Person under the terms of the Guaranty.
"Hazardous Material" shall have the meaning assigned to that term in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Acts of 1986, and shall
also include petroleum, including crude oil or any fraction thereof, or any
other substance defined as "hazardous" or "toxic" or words with similar meaning
and effect under any Environmental Law applicable to the Borrower or any of its
Subsidiaries.
"Highest Lawful Rate" means the maximum nonusurious interest rate, if any,
that any time or from time to time may be contracted for, taken, reserved,
charged or received on any Loans, under laws applicable to any of the Lenders
which are presently in effect or, to the extent allowed by applicable law, under
such laws which may hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow. Determination of the
rate of interest for the purpose of determining whether any Loans are usurious
under all applicable laws shall be made by amortizing, prorating, allocating,
and spreading, in equal parts during the period of the full stated term of the
Loans, all interest at any time contracted for, taken, reserved, charged or
received from the Borrower in connection with the Loans.
"Indebtedness" means, for any Person, the following obligations of such
Person, without duplication: (i) obligations of such Person for borrowed money;
(ii) obligations of such Person representing the deferred purchase price of
property or services other than accounts payable and
11
accrued liabilities arising in the ordinary course of business and other than
amounts which are being contested in good faith and for which reserves in
conformity with GAAP have been provided; (iii) obligations of such Person
evidenced by bonds, notes, bankers acceptances, debentures or other similar
instruments of such Person, or obligations of such Person arising, whether
absolute or contingent, out of letters of credit issued for such Person's
account or pursuant to such Person's application securing Indebtedness; (iv)
obligations of other Persons, whether or not assumed, secured by Liens (other
than Permitted Liens) upon property or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, but only to the
extent of such property's fair market value; (v) Capitalized Lease Obligations
of such Person; (vi) obligations under Interest Rate Protection Agreements and
Currency Rate Protection Agreements, and (vii) obligations of such Person
pursuant to a Guaranty of any of the foregoing obligations of another Person;
provided, however, Indebtedness shall exclude Non-recourse Debt and any
Indebtedness attributable to the mark-to-market treatment of obligations of the
type described in clause (vi) in the definition of Indebtedness and any actual
fair value adjustment arising from any Interest Rate Protection Agreements and
Currency Rate Protection Agreements that have been cancelled or otherwise
terminated before their scheduled expiration, in each case in respect of
Interest Rate Protection Agreements and Currency Rate Protection Agreements
entered into in the ordinary course of business and not for investment or
speculative purposes. For purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture to the
extent such Indebtedness is recourse to such Person.
"Initial Availability Date" means the date on which the conditions
specified in Section 4.1 are satisfied (or waived in accordance with Section
10.11).
"Interest Coverage Ratio" means, as of the end of any fiscal quarter, the
ratio of (i) Consolidated EBITDA for the four fiscal quarter period then ended,
minus all cash dividends paid to shareholders of the Borrower, or to holders of
preferred shares or other preferred equity interests issued by any Subsidiaries
of the Borrower where such holders are Persons other than the Borrower or any of
its Subsidiaries, during such four fiscal quarter period, and all cash income
taxes paid during such four fiscal quarter period, to (ii) Consolidated Interest
Expense for the four fiscal quarter period then ended.
"Interest Payment Date" means (a) with respect to any Base Rate Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, and (c) with
respect to any Competitive Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Competitive Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing.
12
"Interest Period" means (a) with respect to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending (x) in the case of
weekly Borrowings, on the same day of the next following week or second
following week thereafter, and (y) in the case of monthly Borrowings, on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter (or with the consent of each Lender making a Loan as part
of such Borrowing, any other period), in each case as the Borrower may elect,
and (b) with respect to any Competitive Fixed Rate Borrowing, the period (which
shall not be less than 7 days or more than 360 days) commencing on the date of
such Borrowing and ending on the date specified in the applicable Competitive
Bid Request. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Interest Rate Protection Agreement" shall mean any interest rate swap,
interest rate cap, interest rate collar, or other interest rate hedging
agreement or arrangement designed to protect against fluctuations in interest
rates.
"Issuing Bank" is defined in the preamble.
"L/C Documents" means the Letters of Credit, any Issuance Requests and
Applications with respect thereto, any draft or other document presented in
connection with a drawing thereunder, and this Agreement.
"L/C Obligations" means the undrawn face amounts of all outstanding Letters
of Credit and all unpaid Reimbursement Obligations.
"Lead Arranger" means SunTrust Robinson Humphrey Capital Markets, a
division of SunTrust Capital Markets, Inc., acting in its capacity as lead
arranger and book runner for the credit facilities described in this Agreement.
"Lender" is defined in the preamble.
"Lending Office" means the branch, office or affiliate of a Lender
specified on the appropriate signature page hereof, or designated pursuant to
Sections 8.4 or 10.10, as the office through which it will make its Loans
hereunder for each type of Loan available hereunder.
"Letter of Credit" means any of the letters of credit to be issued by the
Issuing Bank for the account of the Borrower pursuant to Section 2.14(a).
"LIBOR Rate" means, relative to any Interest Period for each Eurocurrency
Borrowing, the rate per annum quoted at or about 11:00 a.m. (London, England
time) two Business Days before the commencement of such Interest Period on that
page of the Reuters, Telerate or Bloombergs reporting service (as then being
used by the Administrative Agent to obtain such interest rate quotes) that
displays British Bankers' Association interest settlement rates for deposits in
Dollars, or if such page or such service shall cease to be available, such other
page or other service (as the case may be) for the purpose of displaying British
Bankers' Association
13
interest settlement rates as reasonably determined by the Administrative Agent
upon advising the Borrower as to the use of any such other service. If for any
reason any such settlement interest rate for such Interest Period is not
available to the Administrative Agent through any such interest rate reporting
service, then the "LIBOR Rate" with respect to such Eurocurrency Borrowing will
be the rate at which the Administrative Agent is offered deposits in Dollars of
$5,000,000 for a period approximately equal to such Interest Period in the
London interbank market at 10:00 a.m. two Business Days before the commencement
of such Interest Period.
"Lien" means any interest in any property or asset in favor of a Person
other than the owner of such property or asset and securing an obligation owed
to, or a claim by, such Person, whether such interest is based on the common
law, statute or contract, including, but not limited to, the security interest
lien arising from a mortgage, encumbrance, pledge, conditional sale, security
agreement or trust receipt, or a lease, consignment or bailment for security
purposes.
"Loan" means (i) a Base Rate Loan, (ii) a Eurocurrency Revolving Loan,
(iii) a Competitive Margin Loan, (iv) a Competitive Fixed Rate Loan, or (v) a
Eurocurrency Term Loan, as the case may be, and "Loans" means two or more of any
such Loans.
"Managing Agents" means, collectively, The Bank of Nova Scotia, Credit
Lyonnais New York Branch, HSBC Bank USA, and Westdeutsche Landesbank
Girozentrale, New York Branch, in their capacities as managing agents for the
Lenders, and any successor Managing Agents appointed pursuant to Section 9.7;
provided, however, that no such Managing Agent shall have any duties,
responsibilities, or obligations hereunder in such capacity.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, operations or condition of the Borrower and its Subsidiaries
taken as a whole, or (ii) the Borrower's ability to perform any of its payment
obligations under the Agreement or the Notes, or in respect of the Letters of
Credit.
"Maturity Date" means the earlier of (i) the Commitment Termination Date
or, if the Borrower has exercised the Term Loan Option, December 24, 2004, and
(ii) the date on which the Loans have become due and payable pursuant to Section
7.2 or 7.3.
"Moody's" means Moody's Investors Service, Inc., or any successor thereto.
"Non-recourse Debt" means with respect to any Person (i) obligations of
such Person against which the obligee has no recourse to such Person except as
to certain named or described present or future assets or interests of such
Person, and (ii) the obligations of SPVs to the extent the obligee thereof has
no recourse to the Borrower or any of its Subsidiaries, except as to certain
specified present or future assets or interests of SPVs.
"Note" means any of the promissory notes of the Borrower defined in Section
2.10.
"Obligations" means all obligations of the Borrower to pay fees, costs and
expenses hereunder, to pay principal or interest on Loans and Reimbursement
Obligations and to pay any
14
other obligations to the Administrative Agent or any Lender or Issuing Bank
arising under any Credit Document.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Percentage" means, for each Lender, the percentage of the Commitments
represented by such Lender's Commitment; provided, that, if the Commitments are
terminated, each Lender's Percentage shall be calculated based on such Lender's
pro rata share of the total Loans and L/C Obligations then outstanding or, if no
Loans or L/C Obligations are then outstanding, its Commitment in effect
immediately before such termination, subject to any assignments by such Lender
of Obligations pursuant to Section 10.10.
"Performance Guaranties" means all Guaranties of the Borrower or any of its
Subsidiaries delivered in connection with the construction financing of drill
ships, offshore mobile drilling units or offshore drilling rigs for which firm
drilling contracts have been obtained by the Borrower, any of its Subsidiaries
or a SPV.
"Performance Letters of Credit" means all letters of credit for the account
of the Borrower, any Subsidiary or a SPV issued as support for Non-recourse Debt
or a Performance Guaranty.
"Permitted Business" has the meaning ascribed to such term in Section 6.8.
"Permitted Liens" means the Liens permitted as described in Section 6.10.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or any agency or political subdivision
thereof.
"Plan" means an employee pension benefit plan covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code that
is either (i) maintained by the Borrower or any of its Subsidiaries, or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
the Borrower or any of its Subsidiaries is then making or accruing an obligation
to make contributions or has within the preceding five (5) plan years made or
had an obligation to make contributions.
"Reimbursement Obligations" has the meaning ascribed to such term in
Section 2.14(c).
"Related Credit Extensions" has the meaning ascribed to such term in
Section 2.16(c).
"Required Lenders" means, (i) prior to the conversion of any Revolving
Loans to Term Loans pursuant to Section 2.3, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article 7, and for all purposes after the Loans become due and
15
payable pursuant to Article 7 or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders, and
(ii) on and after the conversion of any Revolving Loans to Term Loans pursuant
to Section 2.3, Lenders having outstanding Term Loans representing more than 50%
of the sum of the total Term Loans outstanding at such time.
"Revolving Credit" means the credit facility for making Revolving Loans and
issuing Letters of Credit described in Sections 2.1 and 2.14.
"Revolving Credit Commitment Amount" means an amount equal to $250,000,000,
as such amount may be reduced from time to time pursuant to the terms of this
Agreement.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum at such time, without duplication, of (i) such Lender's applicable
Percentage of the principal amounts of the outstanding Revolving Loans, and (ii)
such Lender's applicable Percentage of the aggregate outstanding L/C
Obligations.
"Revolving Loan" means each of the revolving loans defined in Section 2.1.
"Revolving Obligations" means the sum of the principal amount of all
Revolving Loans and L/C Obligations outstanding.
"Revolving/Term Notes" means certain promissory notes of the Borrower as
defined in Section 2.10.
"Sale-Leaseback Transaction" means any arrangement whereby the Borrower or
a Subsidiary shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease property that it intends to use for substantially the same purpose
or purposes as the property sold or transferred.
"S&P" means Standard & Poor's Ratings Group or any successor thereto.
"SIW Newco" means the Subsidiary of the Borrower organized to hold,
together with any Subsidiaries of such Subsidiary, all or substantially all of
the assets of the shallow and inland water business segment of the Borrower and
its Subsidiaries (including the jackup rig and drilling barge operations in the
U.S. Gulf of Mexico and the drilling operations in Trinidad and Venezuela), at
such time as there have been issued and are outstanding publicly traded shares
of any such Subsidiary.
"SPV" means any Person that is designated by the Borrower as a SPV,
provided that the Borrower shall not designate as a SPV any Subsidiary that
owns, directly or indirectly, any other Subsidiary (other than a Subsidiary of
SIW Newco) that has total assets (including assets of any Subsidiaries of such
other Subsidiary, but excluding any assets that would be eliminated in
consolidation with the Borrower and its Subsidiaries) which equates to at least
five percent (5%) of the Borrower's Total Assets, or that had net income
(including net income of any Subsidiaries of such other Subsidiary, all before
discontinued operations and income or loss resulting from
16
extraordinary items, all determined in accordance with GAAP, but excluding
revenues and expenses that would be eliminated in consolidation with the
Borrower and its Subsidiaries) during the most recently completed fiscal year of
the Borrower in excess of the greater of (i) $1,000,000, and (ii) fifteen
percent (15%) of the net income (before discontinued operations and income or
loss resulting from extraordinary items) for the Borrower and its Subsidiaries,
all as determined on a consolidated basis in accordance with GAAP during such
fiscal year of the Borrower. The Borrower may elect to treat any Subsidiary as a
SPV (provided such Subsidiary would otherwise qualify as such), and may rescind
any such prior election, by giving written notice thereof to the Administrative
Agent specifying the name of such Subsidiary or SPV, as the case may be, and the
effective date of such election, which shall be a date within sixty (60) days
after the date such notice is given. The election to treat a particular Person
as a SPV may only be made once.
"Significant Subsidiary" has the meaning ascribed to it under Regulation
S-X promulgated under the Securities Exchange Act of 1934, as amended.
"Statutory Reserve Rate" means, with respect to any currency, a fraction
(expressed as a decimal), the numerator of which is the number 1 and the
denominator of which is the number 1 minus the aggregate of the maximum reserve,
liquid asset or similar percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by any Governmental
Authority of the United States or of the jurisdiction of such currency or any
jurisdiction in which Loans in such currency are made to which banks in such
jurisdiction are subject for any category of deposits or liabilities customarily
used to fund loans in such currency or by reference to which interest rates
applicable to loans in such currency are determined. Such reserve, liquid asset
or similar percentages shall include those imposed pursuant to Regulation D of
the Board of Governors of the Federal Reserve System. Eurocurrency Loans shall
be deemed to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D or any other applicable law, rule or
regulation. The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.
"Subsidiary" means, for any Person, any other Person (other than, except in
the context of Section 6.6(a), a SPV) of which more than fifty percent (50%) of
the outstanding stock or comparable equity interests having ordinary voting
power for the election of the board of directors of such corporation, any
managers of such limited liability company or similar governing body
(irrespective of whether or not at the time stock or other equity interests of
any other class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency), is at
the time directly or indirectly owned by such former Person or by one or more of
its Subsidiaries.
"Subsidiary Debt Basket Amount" has the meaning ascribed to such term in
Section 6.11(i).
"Subsidiary Guaranty" means any Guaranty of any Subsidiary delivered
pursuant to Section 6.11(j).
17
"Taxes" has the meaning set forth in Section 5.12.
"Term Loan" means each of the term loans defined in Section 2.3.
"Term Loan Option" means the Borrower's option to convert outstanding
Revolving Loans to Term Loans on December 24, 2003, as provided in Section 2.3.
"Total Assets" means, as of any date of determination, the aggregate book
value of the assets of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as of such date.
"Total Capitalization" means, as of any date of determination, the sum of
Consolidated Indebtedness plus Consolidated Net Worth as of such date.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to Adjusted LIBOR or the Base Rate (in the case of a
Revolving Loan or Revolving Loan Borrowing, or a Term Loan or Term Loan
Borrowing), or the LIBOR Rate or a Competitive Fixed Rate (in the case of a
Competitive Loan or Borrowing).
"Unfunded Vested Liabilities" means, for any Plan at any time, the amount
(if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, determined as of the then most recent valuation date
for such Plan, but only to the extent that such excess represents a potential
liability of the Borrower or any of its Subsidiaries to the PBGC or such Plan.
Section 1.2. Time of Day. Unless otherwise expressly provided, all
-------------
references to time of day in this Agreement and the other Credit Documents shall
be references to New York, New York time.
Section 1.3. Accounting Terms; GAAP. Except as otherwise expressly provided
----------------------
herein, and subject to the provisions of Section 10.19, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time.
ARTICLE 2. THE CREDIT FACILITIES.
Section 2.1. Commitments for Revolving Loans. Subject to the terms and
----------------------------------
conditions hereof, each Lender severally and not jointly agrees to make one or
more loans (each a"Revolving Loan") to the Borrower from time to time prior to
the Commitment Termination Date on a revolving basis in an aggregate amount not
to exceed at any time outstanding an amount equal to its Commitment, subject to
any reductions thereof pursuant to the terms of this Agreement;provided,however,
that no Lender shall be permitted or required to make any Revolving Loan if,
after giving effect thereto, (i) the aggregate principal amount of the Revolving
Loans, the Competitive Loans and the L/C Obligations of all Lenders would
thereby exceed the Revolving Credit Commitment Amount then in effect; or (ii)
the Revolving Credit Exposure of such Lender would thereby exceed its Commitment
then in effect. Each Borrowing of
18
Revolving Loans shall be made ratably from the Lenders in proportion to their
respective Percentages. Revolving Loans may be repaid, in whole or in part, and
all or any portion of the principal amount thereof reborrowed, before the
Commitment Termination Date, subject to the terms and conditions hereof. Funding
of all Revolving Loans shall be in Dollars.
Section 2.2. Types of Revolving Loans and Minimum Borrowing Amounts.
-----------------------------------------------------------
Borrowings of Revolving Loans may be outstanding as either Base Rate Loans or
Adjusted LIBOR Loans, as selected by the Borrower pursuant to Section 2.4. Each
such Borrowing of Base Rate Loans shall be in an amount of not less than
$1,000,000 and each such Borrowing of Adjusted LIBOR Loans shall be in an amount
of not less than $5,000,000 and in an integral multiple of $100,000.
Section 2.3. Term Loan Option. Unless an Event of Default has occurred and
----------------
is continuing, the Borrower may elect that the Revolving Loans of each Lender
outstanding on December 24, 2003, up to an aggregate principal amount for all
Lenders of $125,000,000, be converted into term loans (each a "Term Loan"),
maturing in one installment on December 24, 2004. In order to exercise the
foregoing option, the Borrower shall give irrevocable written notice of its
intent to exercise such option effective as of December 24, 2003, which notice
(i) must be received by the Administrative Agent not earlier than 45 days and
not later than 5 Business Days prior to December 24, 2003, (ii) shall specify
the principal amount of Revolving Loans to be so converted to Term Loans on such
date, and (iii) shall constitute a representation and warranty by the Borrower
that all conditions set forth in Section 4.2 will be satisfied as of December
24, 2003. If the aggregate outstanding principal amount of the Revolving Loans
on December 24, 2003 exceed the amount specified for conversion to Term Loans
pursuant to such written notice from the Borrower, the Borrower shall repay on
such date the Revolving Loans in the amount of such excess on a pro rata basis
according to the Revolving Loans then held by the Lenders. Term Loans may be
outstanding as either Base Rate Loans or Adjusted LIBOR Loans, as selected by
the Borrower pursuant to Section 2.4(b). Borrowings of Term Loans outstanding as
Base Rate Loans shall be in an amount of not less than $1,000,000, and
Borrowings of Term Loans outstanding as Adjusted LIBOR Loans shall be in an
amount of not less than $5,000,000 and in an integral multiple of $100,000. Term
Loans may be prepaid in accordance with Section 2.11, but no amounts prepaid may
be re-borrowed.
Section 2.4. Manner of Borrowings; Continuations and Conversions of
------------------------------------------------------------
Borrowings.
- ----------
(a) Notice of Revolving Loan Borrowings. The Borrower shall give
---------------------------------------
notice to the Administrative Agent by no later than 12:00 p.m. (i) at least
three (3) Business Days before the date on which the Borrower requests the
Lenders to advance a Borrowing of Eurocurrency Revolving Loans, and (ii) on the
date the Borrower requests the Lenders to advance a Borrowing of Base Rate
Revolving Loans, in each case pursuant to a duly executed Borrowing Request
substantially in the form of Exhibit 2.4 (each a "Borrowing Request"). The
-----------
Loans included in each Revolving Borrowing shall bear interest initially at the
type of rate specified in the Borrowing Request with respect to such Borrowing.
(b) Notice of Continuation or Conversion of Outstanding Borrowings.
------------------------------------------------------------------
The Borrower may from time to time elect to change or continue the type of
interest rate borne by each
19
Revolving Loan Borrowing or Term Loan Borrowing, as the case may be, or, subject
to the minimum amount requirements in Sections 2.2 and 2.3 for each outstanding
Revolving Loan Borrowing or Term Loan Borrowing, as the case may be, a portion
thereof, as follows: (i) if such Borrowing is of Eurocurrency Loans, the
Borrower may continue part or all of such Borrowing as Eurocurrency Loans for an
Interest Period specified by the Borrower or convert part or all of such
Borrowing into Base Rate Loans on the last day of the Interest Period applicable
thereto, or the Borrower may earlier convert part or all of such Borrowing into
Base Rate Loans so long as it pays the breakage fees and funding losses provided
in Section 2.13; and (ii) if such Borrowing is of Base Rate Loans, the Borrower
may convert all or part of such Borrowing into Eurocurrency Loans for an
Interest Period specified by the Borrower on any Business Day, in each case
pursuant to notices of continuation or conversion as set forth below. The
Borrower may select multiple Interest Periods for the Eurocurrency Loans
constituting any such particular Borrowing, provided that at no time shall the
number of different Interest Periods for outstanding Eurocurrency Loans exceed
twenty (20) (it being understood for such purposes that (x) Interest Periods of
the same duration, but commencing on different dates, shall be counted as
different Interest Periods, and (y) all Interest Periods commencing on the same
date and of the same duration shall be counted as one Interest Period regardless
of the number of Borrowings or Loans involved. Notices of the continuation of
such Eurocurrency Loans for an additional Interest Period or of the conversion
of part or all of such Eurocurrency Loans into Base Rate Loans or of such Base
Rate Loans into Eurocurrency Loans must be given by no later than 12:00 p.m. at
least three (3) Business Days before the date of the requested continuation or
conversion.
(c) Manner of Notice. The Borrower shall give such notices concerning
-----------------
the advance, continuation, or conversion of a Borrowing pursuant to this Section
2.4 by telephone or facsimile (which notice shall be irrevocable once given and,
if by telephone, shall be promptly confirmed in writing) pursuant to a Borrowing
Request which shall specify the date of the requested advance, continuation or
conversion (which shall be a Business Day), the amount of the requested
Borrowing, whether such Borrowing is to be advanced, continued, or converted,
the type of Loans to comprise such new, continued or converted Borrowing and, if
such Borrowing is to be comprised of Eurocurrency Loans, the Interest Period
applicable thereto. The Borrower agrees that the Administrative Agent may rely
on any such telephonic or facsimile notice given by any Person it in good faith
believes is an authorized representative of the Borrower without the necessity
of independent investigation and that, if any such notice by telephone conflicts
with any written confirmation, such telephonic notice shall govern if the
Administrative Agent has acted in reliance thereon.
(d) Notice to the Lenders. The Administrative Agent shall give prompt
----------------------
telephonic, telex or facsimile notice to each Lender of any notice received
pursuant to this Section 2.4 relating to a Revolving Loan Borrowing or Term Loan
Borrowing. The Administrative Agent shall give notice to the Borrower and each
Lender by like means of the interest rate applicable to each Borrowing of
Eurocurrency Loans (but, if such notice is given by telephone, the
Administrative Agent shall confirm such rate in writing) promptly after the
Administrative Agent has made such determination.
20
(e) Borrower's Failure to Notify. If the Borrower fails to give notice
----------------------------
pursuant to this Section 2.4 of (i) the continuation or conversion of any
outstanding principal amount of a Borrowing of Eurocurrency Loans, or (ii) a
Borrowing of Revolving Loans to pay outstanding Reimbursement Obligations, and
has not notified the Administrative Agent by 12:00 p.m. at least three (3)
Business Days before the last day of the Interest Period for any Borrowing of
Eurocurrency Loans, or by the day such Reimbursement Obligation becomes due, as
the case may be, that it intends to repay such Borrowing or Reimbursement
Obligation, the Borrower shall be deemed to have requested, as applicable, (x)
the continuation of such Borrowing as a Eurocurrency Loan with an Interest
Period of one (1) month or (y) the advance of a new Borrowing of Base Rate Loans
on such day in the amount of the Reimbursement Obligation then due, which
Borrowing pursuant to this clause (y) shall be deemed to have been funded on
such date by the Lenders in accordance with this Section 2.4 and to have been
applied on such day to pay the Reimbursement Obligation then due, in each case
so long as no Event of Default shall have occurred and be continuing or would
occur as a result of such Borrowing but otherwise disregarding the conditions to
Borrowings set forth in Section 4.2. Upon the occurrence and during the
continuance of any Event of Default, (i) each Eurocurrency Loan will
automatically, on the last day of the then existing Interest Period therefor,
convert into a Base Rate Loan, and (ii) the obligation of the Lenders to make,
continue or convert Loans into Eurocurrency Loans shall be suspended.
(f) Conversion. If the Borrower shall elect to convert any particular
----------
Borrowing pursuant to this Section 2.4 from one Type of Loan to the other only
in part, then, from and after the date on which such conversion shall be
effective, such particular Borrowing shall, for all purposes of this Agreement
(including, without limitation, for purposes of subsequent application of this
sentence) be deemed to instead constitute two Borrowings (each originally
advanced on the same date as such particular Borrowing), one comprised of
(subject to subsequent conversion in accordance with this Agreement)
Eurocurrency Loans in an aggregate principal amount equal to the portion of such
Borrowing so elected by the Borrower to be comprised of Eurocurrency Loans and
the second comprised of (subject to subsequent conversion in accordance with
this Agreement) Base Rate Loans in an aggregate principal amount equal to the
portion of such particular Borrowing so elected by the Borrower to be comprised
of Base Rate Loans. If the Borrower shall elect to have multiple Interest
Periods apply to any such particular Borrowing comprised of Eurocurrency Loans,
then, from and after the date such multiple Interest Periods commence, such
particular Borrowing shall, for all purposes of this Agreement (including,
without limitation, for purposes of subsequent application of this sentence), be
deemed to constitute a number of separate Borrowings (each originally commencing
on the same date as such particular Borrowing) equal to the number of, and
corresponding to, the different Interest Periods so selected, each such deemed
separate Borrowing corresponding to a particular selected Interest Period
comprised of (subject to subsequent conversion in accordance with this
Agreement) Eurocurrency Loans in an aggregate principal amount equal to the
portion of such particular Borrowing so elected by the Borrower to have such
Interest Period. This Section 2.4(f) shall be applied appropriately in the
event that the Borrower shall make the elections described in the two preceding
sentences at the same time with respect to the same particular Borrowing.
Section 2.5. Competitive Bid Procedure.
---------------------------
21
(a) Competitive Bid Requests. Subject to the terms and conditions set
-------------------------
forth herein, from time to time before the Commitment Termination Date, the
Borrower may request Competitive Bids and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Loans. To request
Competitive Bids, the Borrower shall notify the Administrative Agent of such
request by telephone in the case of a Borrowing of Competitive Margin Loans, not
later than 11:00 a.m., four (4) Business Days before the date of the proposed
Borrowing and, in the case of a Borrowing of Competitive Fixed Rate Loans, not
later than 10:00 a.m., one (1) Business Day before the date of the proposed
Borrowing; provided that a Competitive Bid Request shall not be made within five
(5) Business Days after the date of any previous Competitive Bid Request, unless
any and all such previous Competitive Bids received in response thereto shall
have been withdrawn, rejected or accepted. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in the form of Exhibit
-------
2.5A or such other form as shall be approved by the Administrative Agent and the
- ----
Borrower and signed by the Borrower. Each such telephonic and written
Competitive Bid Request shall specify the following information in compliance
with Section 2.4(a):
(i) the aggregate amount of the requested Competitive Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to consist of Competitive Margin
Loans or Competitive Fixed Rate Loans;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Competitive Bids. Each Lender may (but shall not have any
-----------------
obligation to) make one or more Competitive Bids to the Borrower in response to
a Competitive Bid Request. Each Competitive Bid by a Lender must be in the form
of Exhibit 2.5B or such other form as shall be approved by the Administrative
-------------
Agent and the Borrower and must be received by the Administrative Agent by
telecopy, in the case of a Borrowing of Competitive Margin Loans, not later than
9:30 a.m., three (3) Business Days before the proposed date of such Borrowing,
and in the case of a Borrowing of Competitive Fixed Rate Loans, not later than
9:30 a.m., on the proposed date of such Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (which shall be equal to or greater than
22
$10,000,000 and in an integral multiple of $100,000 and which may equal the
entire principal amount of the Competitive Borrowing requested by the Borrower)
of the Competitive Loan or Loans that the Lender is willing to make, (ii) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan
or Loans (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
(c) Notice to Borrower. The Administrative Agent shall promptly notify
------------------
the Borrower by telecopy of the Competitive Bid Rate or Rates and the principal
amount specified in each Competitive Bid and the identity of the Lender that
shall have made such Competitive Bid.
(d) Acceptance of Competitive Bids. Subject only to the provisions of
-------------------------------
this paragraph, the Borrower may accept or reject any Competitive Bid. The
Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in the form of Exhibit 2.5D or such other form as shall be approved by
------------
the Administrative Agent and the Borrower, whether and to what extent it has
decided to accept or reject each Competitive Bid, in the case of a Borrowing of
Competitive Margin Loans, not later than 10:30 a.m., three (3) Business Days
before the date of the proposed Borrowing, and in the case of a Borrowing of
Competitive Fixed Rate Loans, not later than 10:30 a.m. on the date of the
proposed Borrowing; provided that (i) the failure of the Borrower to give such
notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Borrower rejects a Competitive Bid made pursuant to the same
Competitive Bid Request at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Borrower shall not exceed the
aggregate amount of the requested Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, the Borrower may accept Competitive Bids at the same Competitive
Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive
Loan is equal to or greater than $10,000,000 and in an integral multiple of
$100,000; provided further that if a Competitive Loan must be in an amount less
than $10,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 and in any integral multiple
of $100,000, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv), the amounts shall be rounded to integral multiples of
$100,000 in a manner determined by the Borrower. A notice given by the Borrower
pursuant to this paragraph shall be irrevocable.
(e) Notice of Acceptance. The Administrative Agent shall promptly
----------------------
notify each bidding Lender by telecopy whether or not its Competitive Bid has
been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and
each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) Submission of Competitive Bid by Administrative Agent. If the
----------------------------------------------------------
Administrative Agent shall elect to submit a Competitive Bid in its capacity as
a Lender, it shall submit such
23
Competitive Bid directly to the Borrower at least one quarter of an hour earlier
than the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this
Section.
Section 2.6. Interest Periods. As provided in Sections 2.4 and 2.5, at the
----------------
time of each request for a Borrowing of Eurocurrency Loans or Competitive Fixed
Rate Loans, or for the continuation or conversion of any Borrowing of
Eurocurrency Revolving Loans or Eurocurrency Term Loans, the Borrower shall
select the Interest Period(s) to be applicable to such Loans from among the
available options, subject to the limitations in Sections 2.4 and 2.5;provided,
however, that:
(i) the Borrower may not select an Interest Period for a Borrowing
of Revolving Loans or Competitive Bid Loans that extends beyond the
Commitment Termination Date, except with respect to Revolving Loans (in an
aggregate amount not to exceed the amount specified for conversion to Term
Loans in the written notice specified in Section 2.3) having an Interest
Period commencing after the Borrower has given the Administrative Agent the
notice of exercise of the Term Loan Option pursuant to Section 2.3;
(ii) the Borrower may not select an Interest Period for a
Borrowing of Term Loans that extends beyond the Maturity Date;
(iii) whenever the last day of any Interest Period would otherwise
be a day that is not a Business Day, the last day of such Interest Period
shall either be (i) extended to the next succeeding Business Day, or (ii)
in the case of Eurocurrency Loans only, reduced to the immediately
preceding Business Day if the next succeeding Business Day is in the next
calendar month; and
(iv) for purposes of determining an Interest Period, a month means
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided,
however, that if there is no such numerically corresponding day in the
month in which an Interest Period is to end or if an Interest Period begins
on the last Business Day of a calendar month, then in the case of
Eurocurrency Loans only, such Interest Period shall end on the last
Business Day of the calendar month in which such Interest Period is to end.
Section 2.7. Funding of Loans.
------------------
(a) Disbursement of Loans. Not later than 12:00 p.m. with respect to
-----------------------
Borrowings of Eurocurrency Revolving Loans and Competitive Fixed Rate Loans, and
2:00 p.m. with respect to Base Rate Revolving Loans, on the date of any
requested advance of a new Borrowing of Loans, each Lender, subject to all other
provisions hereof, shall make available its Loan comprising its portion of such
Borrowing in funds immediately available in Atlanta, Georgia for the benefit of
the Administrative Agent and according to the payment instructions of the
Administrative Agent. The Administrative Agent shall make the proceeds of each
such Borrowing available in immediately available funds to the Borrower (or as
directed in writing by the Borrower) on such
24
date. In the event that any Lender does not make such amounts available to the
Administrative Agent by the time prescribed above, but such amount is received
later that day, such amount may be credited to the Borrower in the manner
described in the preceding sentence on the next Business Day (with interest on
such amount to begin accruing hereunder on such next Business Day) provided that
acceptance by the Borrower of any such late amount shall not be deemed a waiver
by the Borrower of any rights it may have against such Lender. No Lender shall
be responsible to the Borrower for any failure by another Lender to fund its
portion of a Borrowing, and no such failure by a Lender shall relieve any other
Lender from its obligation, if any, to fund its portion of a Borrowing.
(b) Administrative Agent Reliance on Lender Funding. Unless the
----------------------------------------------------
Administrative Agent shall have been notified by a Lender before the date on
which such Lender is scheduled to make payment to the Administrative Agent of
the proceeds of a Loan (which notice shall be effective upon receipt) that such
Lender does not intend to make such payment, the Administrative Agent may assume
that such Lender has made such payment when due and in reliance upon such
assumption may (but shall not be required to) make available to the Borrower the
proceeds of the Loan to be made by such Lender and, if any Lender has not in
fact made such payment to the Administrative Agent, such Lender shall, on
demand, pay to the Administrative Agent the amount made available to the
Borrower attributable to such Lender together with interest thereon for each day
during the period commencing on the date such amount was made available to the
Borrower and ending on (but excluding) the date such Lender pays such amount to
the Administrative Agent at a rate per annum equal to the Administrative Agent's
cost of funds for such amount. If such amount is not received from such Lender
by the Administrative Agent immediately upon demand, the Borrower will, on
demand, repay to the Administrative Agent the proceeds of the Loan attributable
to such Lender with interest thereon at a rate per annum equal to the interest
rate applicable to the relevant Loan, but the Borrower will in no event be
liable to pay any amounts otherwise due pursuant to Section 2.13 in respect of
such repayment. Nothing in this subsection shall be deemed to relieve any
Lender from any obligation to fund any Loans hereunder or to prejudice any
rights which the Borrower may have against any Lender as a result of any default
by such Lender hereunder.
Section 2.8. Applicable Interest Rates.
---------------------------
(a) Base Rate Loans. Each Base Rate Loan shall bear interest (computed
---------------
on the basis of a 365-day year or 366-day year, as the case may be, and actual
days elapsed excluding the date of repayment) on the unpaid principal amount
thereof from the date such Loan is made until maturity (whether by acceleration
or otherwise) or conversion to a Eurocurrency Revolving Loan or Eurocurrency
Term Loan, at a rate per annum equal to the lesser of (i) the Highest Lawful
Rate, or (ii) the Base Rate from time to time in effect. The Borrower agrees to
pay such interest on each Interest Payment Date for such Loan and at maturity
(whether by acceleration or otherwise).
(b) Eurocurrency Loans. Each Eurocurrency Loan (whether a Revolving
-------------------
Loan, Competitive Loan or Term Loan) shall bear interest (computed on the basis
of a 360-day year and actual days elapsed, excluding the date of repayment) on
the unpaid principal amount thereof from the date such Loan is made until
maturity (whether by acceleration or otherwise) or, in the
25
case of Eurocurrency Revolving Loans or Eurocurrency Term Loans, conversion to a
Base Rate Loan at a rate per annum equal to the lesser of (i) the Highest Lawful
Rate, or (ii) the sum of Adjusted LIBOR plus the Applicable Margin (in the case
of Eurocurrency Revolver Loans or Eurocurrency Term Loans) or LIBOR Rate plus
the Competitive Margin (in the case of Competitive Margin Loans), as the case
may be. The Borrower agrees to pay such interest on each Interest Payment Date
for such Loan and at maturity (whether by acceleration or otherwise) or, in the
case of Eurocurrency Revolving Loans or Eurocurrency Term Loans, conversion to a
Base Rate Loan.
(c) Competitive Fixed Rate Loans. Each Competitive Fixed Rate Loan
-------------------------------
shall bear interest (computed on the basis of a 360-day year and actual days
elapsed, in each case excluding the date of repayment) on the unpaid principal
amount thereof from the date such Loan is made until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the Competitive Fixed
Rate applicable to such Loan. The Borrower agrees to pay such interest on each
Interest Payment Date applicable to such Competitive Fixed Rate Loan and at
maturity (whether by acceleration or otherwise).
(d) Rate Determinations. The Administrative Agent shall determine each
-------------------
interest rate applicable to the Loans and Reimbursement Obligations hereunder
insofar as such interest rate involves a determination of Base Rate, Adjusted
LIBOR or LIBOR Rate, or any applicable default rate pursuant to Section 2.9, and
such determination shall be conclusive and binding except in the case of the
Administrative Agent's manifest error or willful misconduct. The Administrative
Agent shall promptly give notice to the Borrower and each Lender of each
determination of Adjusted LIBOR, and to the Borrower and each Lender submitting
a Competitive Bid of each determination of LIBOR Rate, with respect to each
Eurocurrency Loan.
Section 2.9. Default Rate. If any payment of principal on any Loan is not
------------
made when due after the expiration of the grace period therefor provided in
Section 7.1(a) (whether by acceleration or otherwise), or any Reimbursement
Obligation is not paid when due as provided in Section 2.14(c), such Loan or
Reimbursement Obligation shall bear interest (computed on the basis of a year of
360, 365 or 366 days, as applicable, and actual days elapsed) after any such
grace period expires until such principal then due is paid in full, which the
Borrower agrees to pay on demand, at a rate per annum equal to:
(a) for any Base Rate Loan, the lesser of (i) the Highest Lawful Rate,
or (ii) the sum of two percent (2%) per annum plus the Base Rate from time to
time in effect (but not less than the Base Rate in effect at the time such
payment was due);
(b) for any Eurocurrency Loan (whether a Eurocurrency Revolving Loan,
Competitive Margin Loan, or Eurocurrency Term Loan), the lesser of (i) the
Highest Lawful Rate, or (ii) the sum of two percent (2%) per annum plus the rate
of interest in effect thereon at the time of such default until the end of the
Interest Period for such Loan and, thereafter, at a rate per annum equal to the
sum of two percent (2%) per annum plus the Base Rate from time to time in effect
(but not less than the Base Rate in effect at the time such payment was due);
26
(c) for any Competitive Fixed Rate Loan, the lesser of (i) the Highest
Lawful Rate, or (ii) the sum of two percent (2%) per annum plus the Competitive
Fixed Rate in effect thereon at the time of such default until the end of the
Interest Period for such Loan and, thereafter, at the rate of interest that
would otherwise apply to a Eurocurrency Revolving Loan pursuant to paragraph (b)
above; and
(d) for any unpaid Reimbursement Obligations, the lesser of (i) the
Highest Lawful Rate, or (ii) the sum of two percent (2%) per annum plus the Base
Rate from time to time in effect (but not less than the Base Rate in effect at
the time such payment was due).
It is the intention of the Administrative Agent and the Lenders to conform
strictly to usury laws applicable to them. Accordingly, if the transactions
contemplated hereby or any Loan or other Obligation would be usurious as to any
of the Lenders under laws applicable to it (including the laws of the United
States of America and the State of New York or any other jurisdiction whose laws
may be mandatorily applicable to such Lender notwithstanding the other
provisions of this Agreement, the Notes or any other Credit Document), then, in
that event, notwithstanding anything to the contrary in this Agreement, the
Notes or any other Credit Document, it is agreed as follows: (i) the aggregate
of all consideration which constitutes interest under laws applicable to such
Lender that is contracted for, taken, reserved, charged or received by such
Lender under this Agreement, the Notes or any other Credit Document or otherwise
shall under no circumstances exceed the Highest Lawful Rate, and any excess
shall be credited by such Lender on the principal amount of the Loans or to the
Reimbursement Obligations (or, if the principal amount of the Loans and all
Reimbursement Obligations shall have been paid in full, refunded by such Lender
to the Borrower); and (ii) in the event that the maturity of the Loans is
accelerated by reason of an election of the holder or holders thereof resulting
from any Event of Default hereunder or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under laws applicable to such Lender may never include more than the
Highest Lawful Rate, and excess interest, if any, provided for in this
Agreement, the Notes, any other Credit Document or otherwise shall be
automatically canceled by such Lender as of the date of such acceleration or
prepayment and, if theretofore paid, shall be credited by such Lender on the
principal amount of the Loans or to the Reimbursement Obligations (or if the
principal amount of the Loans and all Reimbursement Obligations shall have been
paid in full, refunded by such Lender to the Borrower). To the extent that the
Texas Finance Code, Chapters 302 and 303, are relevant to the Administrative
Agent and the Lenders for the purpose of determining the Highest Lawful Rate,
the Administrative Agent and the Lenders hereby elect to determine the
applicable rate ceiling under such Article by the indicated (weekly) rate
ceiling from time to time in effect, subject to their right subsequently to
change such method in accordance with applicable law. In the event the Loans
and all Reimbursement Obligations are paid in full by the Borrower prior to the
full stated term of the Loans and the interest received from the actual period
of the existence of the Loans exceeds the Highest Lawful Rate, the Lenders shall
refund to the Borrower the amount of the excess or shall credit the amount of
the excess against amounts owing under the Loans and none of the Administrative
Agent or the Lenders shall be subject to any of the penalties provided by law
for contracting for, taking, reserving, charging or receiving interest in excess
of the Highest Lawful Rate. The Texas Finance Code, Chapter 346, which
regulates certain revolving credit loan accounts and revolving tri-party
accounts, shall not apply to this Agreement or the Loans.
27
Section 2.10. Repayment of Loans; Evidence of Debt.
(a) Repayment of Loans. The Borrower hereby promises to pay to the
--------------------
Administrative Agent (i) for the account of each Lender, on the Commitment
Termination Date, the unpaid amount of each Revolving Loan then outstanding,
except to the extent such Revolving Loan is converted to a Term Loan pursuant to
the Borrower's exercise of the Term Loan Option (in which case payment shall be
made in respect of such Loan pursuant to clause (iii) below), (ii) for the
account of each Lender that has made a Competitive Loan to the Borrower, on the
last day of the Interest Period applicable to such Loan, or, if earlier, on the
Commitment Termination Date, the unpaid amount of each Competitive Loan then
outstanding that is owed to such Lender, and (iii) for the account of each
Lender, on the Maturity Date, the unpaid amount of each Term Loan then
outstanding.
(b) Record of Loans by Lenders. Each Lender shall maintain in
------------------------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and accrued interest payable and
paid to such Lender from time to time hereunder.
(c) Record of Loans by Administrative Agent. The Administrative Agent
----------------------------------------
shall maintain accounts in which it shall record (i) the amount of each Loan
made hereunder, the Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or accrued interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) Evidence of Obligations. The entries made in the accounts
-------------------------
maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie
----- -----
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
- --------
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Notes. The Revolving Loans outstanding to the Borrower from each
-----
Lender shall, at the request of such Lender, be evidenced by promissory notes of
the Borrower payable to such Lender in the form of Exhibit 2.10A (each a
-------------
"Revolving/Term Note"). The Competitive Loans outstanding to the Borrower from
any Lender, shall at the request of such Lender, be evidenced by a promissory
note of the Borrower payable to such Lender in the form of Exhibit 2.10B (each a
-------------
"Competitive Note"). The Borrower agrees to execute and deliver to the
Administrative Agent, for the benefit of each Lender requesting one or more
promissory notes as aforesaid, an original of each such promissory note,
appropriately completed, to evidence the respective Loans made by such Lender
hereunder, within ten (10) Business Days after the Borrower receives a written
request therefor.
(f) Recording of Loans and Payments on Notes. Each holder of a Note
-------------------------------------------
shall record on its books and records or on a schedule to its appropriate Note
(and prior to any transfer of its Notes shall endorse thereon or on schedules
forming a part thereof appropriate notations to
28
evidence) the amount of each Loan outstanding from it to the Borrower, all
payments of principal and interest and the principal balance from time to time
outstanding thereon, the type of such Loan and, if a Eurocurrency Loan or a
Competitive Fixed Rate Loan, the Interest Period and interest rate applicable
thereto. Such record, whether shown on the books and records of a holder of a
Note or on a schedule to its Note, shall be prima facie evidence as to all such
matters; provided, however, that the failure of any holder to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of the Borrower to repay all Loans outstanding to it hereunder
together with accrued interest thereon. At the request of any holder of a Note
and upon such holder tendering to the Borrower the Note to be replaced, the
Borrower shall furnish a new Note to such holder to replace any outstanding Note
and at such time the first notation appearing on the schedule on the reverse
side of, or attached to, such new Note shall set forth the aggregate unpaid
principal amount of all Loans, if any, then outstanding thereon.
Section 2.11. Optional Prepayments. The Borrower shall have the privilege
--------------------
of prepaying Base Rate Loans without premium or penalty at any time in whole or
at any time and from time to time in part (but, if in part, then in an amount
which is equal to or greater than $1,000,000);provided, however, that the
Borrower shall have given notice of such prepayment to the Administrative Agent
no later than 12:00 p.m. on the date of such prepayment. The Borrower shall have
the privilege of prepaying Adjusted LIBOR Loans (a) without premium or penalty
in whole or in part (but, if in part, then in an amount which is equal to or
greater than $5,000,000 and in an integral multiple of $100,000) only on the
last Business Day of an Interest Period for such Loan, and (b) at any other time
so long as the breakage fees and funding losses provided for in Section 2.13 are
paid;provided, however, that the Borrower shall have given notice of such
prepayment to the Administrative Agent no later than 12:00 p.m. at least three
(3) Business Days before the last Business Day of such Interest Period or the
proposed prepayment date. The Borrower shall not have the right to prepay any
Competitive Loan without the prior written consent of the Lender thereof unless
the applicable Competitive Bid Request shall have so provided, the Borrower has
given timely notice to the Lender of any such prepayment as may be required
pursuant to the terms of the Competitive Bid Request, and the Borrower shall
have paid to such Lender in connection with any such prepayment all amounts
required to be paid in connection with such prepayment pursuant to the terms of
the applicable Competitive Bid Request. Any such prepayments shall be made by
the payment of the principal amount to be prepaid and accrued and unpaid
interest thereon to the date of such prepayment. Unless otherwise specified in
writing by the Borrower, optional prepayments shall be applied first, to the
Revolving Loans, second, to the Reimbursement Obligations with respect to
Letters of Credit, third, to the Competitive Loans, and fourth to any other
Obligations then outstanding.
Section 2.12. Mandatory Prepayments of Loans. In the event and on each
---------------------------------
occasion that the aggregate principal amount of outstanding Revolving Loans,
Competitive Loans, and L/C Obligations exceeds the Revolving Credit Commitment
Amount then in effect, then the Borrower shall promptly prepay Revolving Loans
and/or Competitive Loans in an aggregate amount sufficient to eliminate such
excess. Immediately upon determining the need to make any such prepayment, the
Borrower shall notify the Administrative Agent of such required prepayment and
of the identity of the particular Revolving Loans and/or Competitive Loans being
prepaid. If the Administrative Agent shall notify the Borrower that the
Administrative
29
Agent has determined that any prepayment is required under this Section 2.12,
the Borrower shall make such prepayment no later than the second Business Day
following such notice. Any mandatory prepayment of Revolving Loans and/or
Competitive Loans pursuant hereto shall not be limited by the notice provision
for prepayments set forth in Section 2.11. Each such prepayment shall be
accompanied by a payment of all accrued and unpaid interest on the Loans prepaid
and any applicable breakage fees and funding losses pursuant to Section 2.13.
Section 2.13. Breakage Fees. If any Lender incurs any loss, cost or expense
-------------
(excluding loss of anticipated profits and other indirect or consequential
damages) by reason of the liquidation or re-employment of deposits or other
funds acquired by such Lender to fund or maintain any Eurocurrency Loan or
Competitive Fixed Rate Loan as a result of any of the following events other
than any such occurrence as a result of a change of circumstance described in
Sections 8.1 or 8.2:
(a) any payment, prepayment or conversion of any such Loan on a date
other than the last day of its Interest Period (whether by acceleration,
mandatory prepayment or otherwise);
(b) any failure to make a principal payment of any such Loan on the due
date therefor; or
(c) any failure by the Borrower to borrow, continue or prepay, or
convert to, any such Loan on the date specified in a notice given pursuant to
Section 2.4 or 2.5 (other than by reason of a default of such Lender),
then the Borrower shall pay to such Lender such amount as will reimburse such
Lender for such loss, cost or expense. If any Lender makes such a claim for
compensation, it shall provide to the Borrower a certificate executed by an
officer of such Lender setting forth the amount of such loss, cost or expense in
reasonable detail (including an explanation of the basis for and the computation
of such loss, cost or expense) no later than ninety (90) days after the event
giving rise to the claim for compensation, and the amounts shown on such
certificate shall be prima facie evidence of such Lender's entitlement thereto.
Within ten (10) days of receipt of such certificate, the Borrower shall pay
directly to such Lender such amount as will compensate such Lender for such
loss, cost or expense as provided herein, unless such Lender has failed to
timely give notice to the Borrower of such claim for compensation as provided
herein, in which event the Borrower shall not have any obligation to pay such
claim.
Section 2.14. Letters of Credit.
-------------------
(a) Letters of Credit. Subject to the terms and conditions hereof, the
-----------------
Issuing Bank agrees to issue, from time to time prior to the Commitment
Termination Date, at the request of the Borrower and on behalf of the Lenders
and in reliance on their obligations under this Section 2.14, one or more
letters of credit (each a "Letter of Credit") for the Borrower's account in a
face amount in each case of at least $500,000 and in an aggregate undrawn face
amount for all Letters of Credit at any time outstanding not to exceed the
Revolving Credit Commitment Amount; provided, that the Issuing Bank shall not be
obligated to issue a Letter of Credit pursuant to this Section 2.14 if, after
the issuance thereof, (i) the outstanding Revolving Loans,
30
Competitive Loans, and L/C Obligations would thereby exceed the Revolving Credit
Commitment Amount then in effect, or (ii) the issuance of such Letter of Credit
would violate any legal or regulatory restriction then applicable to the Issuing
Bank or any Lender as notified by the Issuing Bank or such Lender to the
Administrative Agent before the date of issuance of such Letter of Credit.
Letters of Credit and any increases and extensions thereof hereunder shall be
issued in face amounts of Dollars.
(b) Issuance Procedure. To request that the Issuing Bank issue a
-------------------
Letter of Credit, the Borrower shall deliver to the Issuing Bank and the
Administrative Agent (with a duplicate copy to an operations employee of the
Issuing Bank as designated by the Issuing Bank from time to time) a duly
executed Issuance Request substantially in the form of Exhibit 2.14A (each an
-------------
"Issuance Request"), together with a duly executed application for the relevant
Letter of Credit substantially in the form of Exhibit 2.14B (each an
--------------
"Application"), or such other computerized issuance or application procedure,
instituted from time to time by the Issuing Bank and the Administrative Agent
and agreed to by the Borrower, completed to the reasonable satisfaction of the
Issuing Bank and the Administrative Agent, and such other information as the
Issuing Bank and the Administrative Agent may reasonably request. In the event
of any irreconcilable difference or inconsistency between this Agreement and an
Application, the provisions of this Agreement shall govern. Upon receipt of a
properly completed and executed Application and any other reasonably requested
information at least three (3) Business Days prior to any requested issuance
date, the Issuing Bank will process such Application in accordance with its
customary procedures and issue the requested Letter of Credit on the requested
issuance date. The Borrower may cancel any requested issuance of a Letter of
Credit prior to the issuance thereof. The Issuing Bank will notify the
Administrative Agent and each Lender of the amount, currency, and expiration
date of each Letter of Credit it issues promptly upon issuance thereof. Each
Letter of Credit shall have an expiration date no later than four (4) Business
Days before the Commitment Termination Date. If the Issuing Bank issues any
Letters of Credit with expiration dates that automatically extend unless the
Issuing Bank gives notice that the expiration date will not so extend, the
Issuing Bank will give such notice of non-renewal before the time necessary to
prevent such automatic extension if (and will not give such notice of
non-renewal before such time unless) before such required notice date (i) the
expiration date of such Letter of Credit if so extended would be later than four
(4) Business Days before the Commitment Termination Date, (ii) the Commitment
Termination Date shall have occurred, (iii) a Default or an Event of Default
exists and the Required Lenders have given the Issuing Bank instructions not to
so permit the expiration date of such Letter of Credit to be extended, or (iv)
the Issuing Bank is so directed by the Borrower. The Issuing Bank agrees to
issue amendments to any Letter of Credit increasing its amount, or extending its
expiration date, at the request of the Borrower, subject to the conditions
precedent for all Borrowings of Section 4.2 and the other terms and conditions
of this Section 2.14.
(c) The Borrower's Reimbursement Obligations.
-------------------------------------------
(i) The Borrower hereby irrevocably and unconditionally agrees to
reimburse the Issuing Bank for each payment or disbursement made by the
Issuing Bank to settle its obligations under any draft drawn or other
payment made under a Letter of Credit (a "Reimbursement Obligation") within
two (2) Business Days from when such draft is
31
paid or other payment is made with either funds not borrowed hereunder or
with a Borrowing of Revolving Loans subject to Section 2.4 and the other
terms and conditions contained in this Agreement. The Reimbursement
Obligation shall bear interest (which the Borrower hereby promises to pay)
from and after the date such draft is paid or other payment is made until
(but excluding the date) the Reimbursement Obligation is paid at the lesser
of (x) the Highest Lawful Rate, or (y) the Base Rate, in each case so long
as the Reimbursement Obligation shall not be past due, and thereafter at
the default rate per annum as set forth in Section 2.9(d), whether or not
the Commitment Termination Date shall have occurred. If any such payment or
disbursement is reimbursed to the Issuing Bank on the date such payment or
disbursement is made by the Issuing Bank, interest shall be paid on the
reimbursable amount for one (1) day. The Issuing Bank shall give the
Borrower notice of any drawing on a Letter of Credit within one (1)
Business Day after such drawing is paid.
(ii) The Borrower agrees for the benefit of the Issuing Bank and
each Lender that, notwithstanding any provision of any Application, the
obligations of the Borrower under this Section 2.14(c) and each applicable
Application shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement and each
applicable Application under all circumstances whatsoever (other than the
defense of payment in accordance with this Agreement), including, without
limitation, the following circumstances (subject in all cases to the
defense of payment in accordance with this Agreement):
(1) any lack of validity or enforceability of any of the L/C
Documents;
(2) any amendment or waiver of or any consent to depart from
all or any of the provisions of any of the L/C Documents;
(3) the existence of any claim, set-off, defense or other
right the Borrower may have at any time against a beneficiary of a Letter
of Credit (or any person for whom a beneficiary may be acting), the Issuing
Bank, any Lender or any other Person, whether in connection with this
Agreement, another L/C Document or any unrelated transaction;
(4) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(5) payment by the Issuing Bank under a Letter of Credit
against presentation to the Issuing Bank of a draft or certificate that
does not comply with the terms of the Letter of Credit; or
(6) any other act or omission to act or delay of any kind by
the Issuing Bank, any Lender or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this Section
2.14(c), constitute a legal or equitable
32
discharge of the Borrower's obligations hereunder, under an Issuance
Request or under an Application;
provided, however, the foregoing shall not be construed to excuse the Issuing
Bank from liability to the Borrower to the extent of any direct damages (but
excluding consequential damages, which are hereby waived to the extent not
prohibited by applicable law) suffered by the Borrower that are caused by the
Issuing Bank's gross negligence or willful misconduct.
(d) The Participating Interests. Each Lender severally and not jointly
---------------------------
agrees to purchase from the Issuing Bank, and the Issuing Bank hereby agrees to
sell to each Lender, an undivided percentage participating interest, to the
extent of its Percentage, in each Letter of Credit issued by, and Reimbursement
Obligation owed to, the Issuing Bank in connection with a Letter of Credit.
Upon any failure by the Borrower to pay any Reimbursement Obligation in
connection with a Letter of Credit at the time required in Sections 2.14(c) and
2.4(c), or if the Issuing Bank is required at any time to return to the Borrower
or to a trustee, receiver, liquidator, custodian or other Person any portion of
any payment by the Borrower of any Reimbursement Obligation in connection with a
Letter of Credit, the Issuing Bank shall promptly give notice of same to each
Lender, and the Issuing Bank shall have the right to require each Lender to fund
its participation in such Reimbursement Obligation. Each Lender (except the
Issuing Bank to the extent it is also a Lender) shall pay to the Issuing Bank an
amount equal to such Lender's Percentage of such unpaid or recaptured
Reimbursement Obligation not later than the Business Day it receives notice from
the Issuing Bank to such effect, if such notice is received before 2:00 p.m., or
not later than the following Business Day if such notice is received after such
time. If a Lender fails to pay timely such amount to the Issuing Bank, it shall
also pay to the Issuing Bank interest on such amount accrued from the date
payment of such amount was made by the Issuing Bank to the date of such payment
by the Lender at a rate per annum equal to the Base Rate in effect for each such
day and only after such payment shall such Lender be entitled to receive its
Percentage of each payment received on the relevant Reimbursement Obligation and
of interest paid thereon. The several obligations of the Lenders to the Issuing
Bank under this Section 2.14(d) shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever and shall not be subject to any
set-off, counterclaim or defense to payment any Lender may have or have had
against the Borrower, the Issuing Bank, and any other Lender or any other Person
whatsoever including, but not limited to, any defense based on the failure of
the demand for payment under the Letter of Credit to conform to the terms of
such Letter of Credit or the legality, validity, regularity or enforceability of
such Letter of Credit and INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM
THE ISSUING BANK'S OWN SIMPLE OR CONTRIBUTORY NEGLIGENCE. Without limiting the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any subsequent reduction or termination of any
Commitment of a Lender, and each payment by a Lender under this Section 2.14
shall be made without any offset, abatement, withholding or reduction
whatsoever.
Section 2.15. Commitment Terminations. The Borrower shall have the right at
-----------------------
any time and from time to time, upon three (3) Business Days' prior and
irrevocable written notice to the Administrative Agent, to terminate or reduce
the Commitments without premium or penalty, in whole or in part, any reduction
(i) to be in an amount not less than $5,000,000 as determined by
33
the Borrower and in integral multiples of $5,000,000, and (ii) to be allocated
ratably among the Lenders in proportion to their respective Commitments;
provided, that the Revolving Credit Commitment Amount may not be reduced to an
amount less than the sum of the aggregate principal amount of outstanding
Revolving Loans, Competitive Loans, and L/C Obligations, after giving effect to
payments on such proposed termination or reduction date; provided, however, that
-----------------
to the extent the Borrower provides to the Administrative Agent cash collateral
in an amount sufficient to cover such shortage or back-to-back letters of credit
from a bank(s) or financial institution(s) whose short-term unsecured debt
rating is rated A or above from either S&P or Moody's or such other bank(s) or
financial institution(s) satisfactory to the Required Lenders in an amount equal
to the undrawn face amount of any applicable outstanding Letters of Credit with
an expiration date of at least five (5) days after the expiration date of any
applicable Letter of Credit and which provide that the Administrative Agent may
make a drawing thereunder in the event that it pays a drawing under such Letter
of Credit. The Administrative Agent shall give prompt notice to each Lender of
any such termination or reduction of the Commitments. Any termination of
Commitments pursuant to this Section 2.15 is permanent and may not be
reinstated.
Section 2.16. Extension of Commitments.
--------------------------
(a) The Borrower may, by notice to the Administrative Agent (which
shall promptly deliver a copy to each of the Lenders) given not less than 30
days and not more than 60 days prior to December 24, 2003, request that the
Lenders extend the Commitment Termination Date for an additional period of not
more than 364 days as specified in such notice. Any such notice shall specify
any fees that the Borrower agrees to pay as consideration for such extension,
any changes to the Applicable Facility Fee Rate, Applicable Margin, and/or
Applicable Utilization Fee Rate that will apply during the term of such
extension and the amendments, if any, to the covenants contained herein or other
provisions hereof proposed by the Borrower to be applicable during the term of
such extension. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not earlier than the 30th day and not later than the
15th day prior to December 24, 2003, advise the Administrative Agent and the
Borrower whether or not it agrees to such extension on the terms set forth in
such notice. Any Lender that has not so advised the Administrative Agent by
such day shall be deemed to have declined to agree to such extension.
(b) If (and only if) Lenders (including any Lenders becoming parties to
this Agreement as contemplated by the last sentence of paragraph (c) below)
holding more than 50% of the Commitments in effect prior to such extension shall
have agreed to extend the Commitment Termination Date (each such Lender being
called an "Extending Lender", and Lenders not having so agreed being called
"Non-Extending Lenders"), then, if the Borrower shall so elect in a notice
delivered to the Administrative Agent not earlier than the 15th day and not
later than the 10th day prior to December 24, 2003, the Commitment Termination
Date shall be extended as to such Extending Lenders for the additional period
and on the terms specified in the Borrower's notice provided for under paragraph
(a) and, if such terms vary from those contained in this Agreement, the Borrower
and the Extending Lenders shall enter into an amendment to this Agreement to be
effective as of December 24, 2003, pursuant to which such terms shall be given
effect as to the Borrower and the Extending Lenders and, to the extent
consistent with Section 10.11, the other Lenders.
34
(c) If less than all the Lenders consent to any extension request
pursuant to paragraph (a), the Administrative Agent shall promptly so notify the
Extending Lenders, and each Extending Lender may, in its sole discretion, give
written notice to the Administrative Agent not later than 10 days prior to
December 24, 2003, of the amount of the Non-Extending Lenders' Commitments,
together with the corresponding amount of such Non-Extending Lenders'
outstanding Loans and obligations and interests in respect of outstanding L/C
Obligations (such corresponding amount of Loans and obligations and interests in
respect of outstanding L/C Obligations being collectively referred to as the
"Related Credit Extensions"), it is willing to accept and assume. If such
Extending Lenders are willing to accept and assume Commitments and Related
Credit Extensions in an aggregate amount that exceeds the amount of the
Commitments and Related Credit Extensions of the Non-Extending Lenders, the
Non-Extending Lenders' Commitments and Related Credit Extensions shall be
allocated among Extending Lenders willing to accept and assume such Commitments
and Related Credit Extensions in such amounts as shall be agreed between the
Borrower and the Administrative Agent, and such Commitments and Related Credit
Extensions shall be assigned, accepted and assumed in accordance with the
provisions of Section 10.10. If after giving effect to the assignments
described above the full amount of the Commitments and Related Credit Extensions
of the Non-Extending Lenders would not be assigned, accepted and assumed as set
forth above prior to December 24, 2003, the Borrower may (i) arrange for one or
more Extending Lenders or other assignees eligible to become Lenders hereunder
(each, an "Extension Assuming Lender"), to accept and assume the unassigned
amounts of the Commitments and Related Credit Extensions of the Non-Extending
Lenders in accordance with Section 10.10 and become parties hereto with all the
rights and obligations of Lenders hereunder, or (ii) subject to the requirements
of paragraph (b) above, reduce the aggregate amount of the Commitments to an
amount equal to the aggregate amount of Commitments held by all Extending
Lenders and Extension Assuming Lenders all as of December 24, 2003.
On December 24, 2003:
(i) the Extending Lenders and Extension Assuming Lenders shall pay
to the Non-Extending Lenders the principal amount of any outstanding Loans
made by such Non-Extending Lenders, and any outstanding amounts paid by
such Non-Extending Lenders pursuant to Section 2.14(d), all as assigned,
accepted and assumed in accordance with this paragraph (c), together with
any accrued interest thereon as of December 24, 2003;
(ii) any accrued fees and other amounts payable hereunder to any
Non-Extending Lender as of December 24, 2003 shall be paid to such
Non-Extending Lender by the Borrower or by such Extending Lenders and
Extension Assuming Lenders, as may be agreed by such parties; and
(iii) with respect to any such Extension Assuming Lender, the
applicable processing and recordation fee required under Section 10.10
shall be paid.
35
The Commitment of any Extension Assuming Lender shall in no event be less than
$5,000,000 (subject to the fourth sentence of Section 10.10(b)) unless the
Commitment of a Non-Extending Lender as of December 24, 2003 is less than
$5,000,000, in which case such Extension Assuming Lender may accept and assume
all of such lesser amount. Any such Non-Extending Lender's rights under
Sections 2.13, 3.3, 8.3, 10.3, and 10.13, and its obligations under Section 9.6,
shall survive such substitution as to matters occurring on or prior to December
24, 2003, (and if such Non-Extending Lender shall continue to have Loans
outstanding after December 24, 2003, shall continue in effect following December
24, 2003).
At least three Business Days prior to the proposed effective date of any
extension of the Commitment Termination Date pursuant to this Section, (A) each
Extension Assuming Lender, if any, shall deliver to the Borrower and the
Administrative Agent an Assignment Agreement or other agreement in a form
approved by the Administrative Agent and the Borrower evidencing such Extension
Assuming Lender's Commitment and Related Credit Extensions, duly executed by
such Extension Assuming Lender, such Non-Extending Lender a Commitment and
Related Credit Extensions of which is being assigned to and accepted and assumed
by such Extension Assuming Lender, the Borrower and the Administrative Agent,
and (B) each Extending Lender, if any, shall have delivered written confirmation
satisfactory to the Borrower and the Administrative Agent as to any increase in
the amount of its Commitment and Related Credit Extensions resulting from its
acceptance and assumption of all or a portion of the Commitments and Related
Credit Extensions of the Non-Extending Lenders. As of and following the
effective date of any extension made pursuant to this Section, each Extension
Assuming Lender shall be a Lender for all purposes of this Agreement.
(d) The decision to agree or withhold agreement to any requested
extension of the Commitment Termination Date hereunder shall be at the sole
discretion of each Lender. If the Commitment Termination Date shall have been
extended as provided in paragraph (b) above, the Commitment of any Non-Extending
Lender shall terminate on December 24, 2003, and the term "Commitment
Termination Date", as used herein, shall mean, as to the Related Credit
Extensions of such Non-Extending Lender (to the extent not assumed pursuant to
paragraph (c)), the Commitment Termination Date in effect prior to giving effect
to such extension.
(e) Notwithstanding the foregoing, no extension of the Commitment
Termination Date shall become effective under this Section unless (i) the
conditions set forth in paragraphs (b) and (c) of Section 4.2 shall be satisfied
on December 24, 2003, and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by the President or a
Vice President of the Borrower, and (ii) the Administrative Agent shall have
received (with sufficient copies for each of the Lenders (other than any
Non-Extending Lenders)) documents consistent with those delivered under clause
(i) of Section 4.1(a) as to the corporate power and authority of the Borrower to
borrow hereunder after giving effect to such extension.
36
ARTICLE 3. FEES AND PAYMENTS.
Section 3.1. Fees.
----
(a) Facility Fees. The Borrower agrees to pay to the Administrative
--------------
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Facility Fee Rate (i) on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the Initial
Availability Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure, and (ii) if
the Borrower has exercised the Term Loan Option, on the daily principal amount
of the Term Loans of such Lender during the period from and including December
24, 2003 to but excluding the date on which all outstanding Term Loans are paid
in full. Accrued facility fees shall be payable in arrears on the last Business
Day of March, June, September and December of each year, commencing on December
31, 2002, on the date(s) on which the Commitments shall have terminated and the
Lenders shall have no further Revolving Credit Exposures, and on the Maturity
Date. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Utilization Fees. (i) For any day prior to the Commitment
-----------------
Termination Date on which the outstanding principal amount of the Loans and L/C
Obligations shall be greater than an amount equal to 33% of the total
Commitments (and for any day after the termination of all the Commitments on
which any Loans or L/C Obligations shall be outstanding if the outstanding
principal amount thereof on the date the Commitments terminated shall have been
greater than 33% of the total Commitments in effect on such date), and (ii) if
the Borrower has exercised the Term Loan Option, for any day on which any Term
Loans are outstanding, the Borrower shall pay to the Administrative Agent for
the account of each Lender a utilization fee equal to the Applicable Utilization
Fee Rate multiplied by the aggregate amount of such Lender's outstanding Loans
and applicable Percentage of L/C Obligations on such day. Accrued and unpaid
utilization fees, if any, shall be payable in arrears on the last Business Day
of each March, June, September and December, on the date(s) on which the
Commitments shall have terminated and there are no Loans or L/C Obligations
outstanding, and on the Maturity Date. All utilization fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) Letter of Credit Fees. Commencing upon the date of issuance,
------------------------
increase or extension of any Letter of Credit and thereafter on the last
Business Day of each March, June, September and December, the Borrower shall pay
to the Administrative Agent quarterly in advance, for the period until the next
Letter of Credit fee payment date, for the ratable account of the Lenders, a
non-refundable fee equal to the Applicable Margin multiplied by the outstanding
face amount or increase of such Letter of Credit during such upcoming period
calculated on the basis of a 360 day year and actual days elapsed and based on
the then scheduled expiration date of the Letter of Credit. In addition, the
Borrower shall pay to the Issuing Bank solely for the
37
Issuing Bank's account, in connection with each Letter of Credit, issuance and
administrative fees and expenses for Letters of Credit as agreed from time to
time between the Issuing Bank and the Borrower.
(d) Administrative Agent Fees. The Borrower shall pay to the
---------------------------
Administrative Agent and Lead Arranger the fees from time to time agreed to by
the Borrower, the Administrative Agent, and Lead Arranger.
(e) Payment of Fees. All fees payable hereunder shall be paid on the
-----------------
dates due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees, utilization fees, and Letter of
Credit fees (other than issuance and administrative fees payable to the Issuing
Bank), to the Lenders.
Section 3.2. Place and Application of Payments.
-------------------------------------
(a) All payments of principal of and interest on the Loans,
Reimbursement Obligations and all fees and other amounts payable by the Borrower
under the Credit Documents shall be made by the Borrower to the Administrative
Agent, for the benefit of the Lenders entitled to such payments, in immediately
available funds on the due date thereof no later than 2:00 p.m. at the office of
the Administrative Agent in Atlanta, Georgia, or such other location as the
Administrative Agent may designate in writing to the Borrower. Any payments
received by the Administrative Agent from the Borrower after the time specified
in the preceding sentence shall be deemed to have been received on the next
Business Day. The Administrative Agent will, on the same day each payment is
received or deemed to have been received in accordance with this Section 3.2,
cause to be distributed like funds to each Lender owed an Obligation for which
such payment was received, pro rata based on the respective amounts of such type
of Obligation then owing to each Lender.
(b) If any payment received by the Administrative Agent under any
Credit Document is insufficient to pay in full all amounts then due and payable
to the Administrative Agent and the Lenders under the Credit Documents, such
payment shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the order set forth in Section 7.7. In
calculating the amount of Obligations owing each Lender other than for principal
and interest on Loans and Reimbursement Obligations and fees under Section 3.1,
the Administrative Agent shall only be required to include such other
Obligations that Lenders have certified to the Administrative Agent in writing
are due to such Lenders.
Section 3.3. Withholding Taxes.
------------------
(a) Payments Free of Withholding. Except as otherwise required by law
-----------------------------
and subject to Section 3.3(b), each payment by the Borrower to any Lender,
Issuing Bank or Administrative Agent under this Agreement or any other Credit
Document shall be made without withholding for or on account of any present or
future taxes imposed by or within the jurisdiction in which the Borrower is
incorporated, any jurisdiction from which the Borrower makes any payment, or (in
each case) any political subdivision or taxing authority thereof or therein,
excluding, in the case of each Lender, Issuing Bank and the Administrative
Agent, the following taxes:
38
(i) taxes imposed on, based upon, or measured by such Lender's,
Issuing Bank's or the Administrative Agent's net income or profits, and
branch profits, franchise and similar taxes imposed on it;
(ii) taxes imposed on such Lender, Issuing Bank or the
Administrative Agent as a result of a present or former connection between
the taxing jurisdiction and such Lender, Issuing Bank or Administrative
Agent, or any affiliate thereof, as the case may be, other than a
connection resulting solely from the transactions contemplated by this
Agreement;
(iii) taxes imposed as a result of the transfer by such Lender,
Issuing Bank or Administrative Agent of its interest in this Agreement or
any other Credit Document or a designation by such Lender, Issuing Bank or
the Administrative Agent (other than pursuant to Section 8.3(c)) of a new
Lending Office (other than taxes imposed as a result of any change in
treaty, law or regulation after such transfer of such Lender's, Issuing
Bank's or the Administrative Agent's interest in this Agreement or any
other Credit Document or designation of a new Lending Office);
(iv) taxes imposed by the United States of America (or any
political subdivision thereof or tax authority therein) upon a Lender,
Issuing Bank or Administrative Agent organized under the laws of a
jurisdiction outside of the United States, except to the extent that such
tax is imposed as a result of any change in applicable law, regulation or
treaty (other than any addition of or change in any "anti-treaty shopping,"
"limitation of benefits," or similar provision applicable to a treaty)
after the date hereof, in the case of each Lender, Issuing Bank or
Administrative Agent originally a party hereto or, in the case of any
Purchasing Lender (as defined in Section 10.10) or other Issuing Bank or
Administrative Agent, after the date on which it becomes a Lender, Issuing
Bank, or Administrative Agent, as the case may be; or
(v) taxes which would not have been imposed but for (a) the
failure of any Lender, the Issuing Bank, or the Administrative Agent, as
the case may be, to provide (I) the applicable forms prescribed by the
Internal Revenue Service, as required pursuant to Section 3.3(b), or (II)
any other form, certification, documentation or proof which is reasonably
requested by the Borrower, or (b) a determination by a taxing authority or
a court of competent jurisdiction that a form, certification, documentation
or other proof provided by such Lender, Issuing Bank or the Administrative
Agent to establish an exemption from such tax, assessment or other
governmental charge is false;
(all such present or future taxes, excluding only the taxes described in the
preceding clauses (i) through (v), being hereinafter referred to as "Indemnified
Taxes"). If any such withholding is so required, the Borrower shall make the
withholding, pay the amount withheld to the appropriate governmental authority
before penalties attach thereto or interest accrues thereon and forthwith pay
such additional amount as may be necessary to ensure that the net amount
actually received by each Lender, Issuing Bank and the Administrative Agent is
free and clear of such Indemnified Taxes (including Indemnified Taxes on such
additional amount) and is equal to the amount that
39
such Lender, Issuing Bank or the Administrative Agent (as the case may be) would
have received had withholding of any Indemnified Tax not been made. If the
Borrower pays any Indemnified Taxes, or any penalties or interest in connection
therewith, it shall deliver official tax receipts evidencing the payment or
certified copies thereof, or other evidence of payment if such tax receipts have
not yet been received by the Borrower (with such tax receipts to be delivered
within fifteen (15) days after being actually received), to the Lender, Issuing
Bank or the Administrative Agent on whose account such withholding was made
(with a copy to the Administrative Agent if not the recipient of the original)
within fifteen (15) days of such payment. If the Administrative Agent, Issuing
Bank or any Lender pays any Indemnified Taxes, or any penalties or interest in
connection therewith, the Borrower shall reimburse the Administrative Agent,
Issuing Bank or that Lender for the payment on demand in the currency in which
such payment was made. Such Lender, Issuing Bank or the Administrative Agent
shall make written demand on the Borrower for reimbursement hereunder no later
than ninety (90) days after the earlier of (i) the date on which such Lender,
Issuing Bank or the Administrative Agent makes payment of the Indemnified Taxes,
penalties and interest, and (ii) the date on which the relevant taxing authority
or other governmental authority makes written demand upon such Lender, Issuing
Bank or the Administrative Agent for payment of the Indemnified Taxes, penalties
and interest. Any such demand shall describe in reasonable detail such
Indemnified Taxes, penalties or interest, including the amount thereof if then
known to such Lender, Issuing Bank, or the Administrative Agent, as the case may
be. In the event that such Lender, Issuing Bank or the Administrative Agent
fails to give the Borrower timely notice as provided herein, the Borrower shall
not have any obligation to pay such claim for reimbursement.
(b) U.S. Withholding Tax Exemptions. Upon the written request of the
---------------------------------
Borrower or the Administrative Agent, each Lender or Issuing Bank that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Administrative Agent, promptly after
such request, two duly completed and signed copies of either Form W-8 BEN or any
successor form (entitling such Lender or Issuing Bank to a complete exemption
from withholding under the Code on all amounts to be received by such Lender or
Issuing Bank, including fees, pursuant to the Credit Documents) or Form W-8 ECI
or any successor form (relating to all amounts to be received by such Lender or
Issuing Bank, including fees, pursuant to the Credit Documents) of the United
States Internal Revenue Service, and any other form of the United States
Internal Revenue Service reasonably necessary to accomplish exemption from
withholding obligations or to facilitate the Administrative Agent's performance
under this Agreement. Thereafter and from time to time, each such Lender or
Issuing Bank shall submit to the Borrower and the Administrative Agent such
additional duly completed and signed copies of such forms (or such successor
forms as shall be adopted from time to time by the relevant United States taxing
authorities) as may be required under then-current United States law or
regulations to avoid United States withholding taxes on payments in respect of
all amounts to be received by such Lender or Issuing Bank, including fees,
pursuant to the Credit Documents. Upon the request of the Borrower, each Lender
or Issuing Bank that is a United States person shall submit to the Borrower a
certificate to the effect that it is such a United States person.
(c) Inability of Lender to Submit Forms. If any Lender or Issuing Bank
-----------------------------------
determines in good faith, as a result of any change in applicable law,
regulation or treaty, or in any official
40
application or interpretation thereof, that (i) it is unable to submit to the
Borrower or Administrative Agent any form or certificate that such Lender or
Issuing Bank is obligated to submit pursuant to subsection (b) of this Section
3.3, (ii) it is required to withdraw or cancel any such form or certificate
previously submitted, or (iii) any such form or certificate otherwise becomes
ineffective or inaccurate, such Lender or Issuing Bank shall promptly notify the
Borrower and Administrative Agent of such fact, and the Lender or Issuing Bank
shall to that extent not be obligated to provide any such form or certificate
and will be entitled to withdraw or cancel any affected form or certificate, as
applicable.
(d) Refund of Taxes. If any Lender, Issuing Bank or the Administrative
---------------
Agent becomes aware that it has received a refund of any Indemnified Tax or any
tax referred to in Section 10.3 with respect to which the Borrower has paid any
amount pursuant to this Section 3.3 or Section 10.3, such Lender, Issuing Bank
or the Administrative Agent shall pay the amount of such refund (including any
interest received with respect thereto) to the Borrower within fifteen (15) days
after receipt thereof. A Lender, Issuing Bank, or the Administrative Agent
shall provide, at the sole cost and expense of the Borrower, such assistance as
the Borrower may reasonably request in order to obtain such a refund; provided,
however, that neither the Administrative Agent nor any Lender or Issuing Bank
shall in any event be required to disclose any information to the Borrower with
respect to the overall tax position of the Administrative Agent, Issuing Bank,
or such Lender.
ARTICLE 4. CONDITIONS PRECEDENT.
Section 4.1. Initial Borrowing. The obligation of each Lender to advance
------------------
the initial Loans hereunder, and of the Issuing Bank to issue the initial Letter
of Credit hereunder, on or after the Initial Availability Date is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received duly executed
counterparts of this Agreement and the following all in form and substance
reasonably satisfactory to the Administrative Agent and in sufficient number of
signed counterparts, where applicable, to provide one for each Lender:
(i) Certificates of Officers. Certificates of the Secretary or an
------------------------
Assistant Secretary of the Borrower containing specimen signatures of the
persons authorized to execute Credit Documents on the Borrower's behalf or
any other documents provided for herein or therein, together with (x)
copies of resolutions of the Board of Directors or other appropriate body
of the Borrower authorizing the execution and delivery of the Credit
Documents, (y) copies of the Borrower's Memorandum and Articles of
Association and other publicly filed organizational documents in its
jurisdiction of organization and bylaws and other governing documents, and
(z) a certificate of incorporation and good standing from the appropriate
governing agency of the Borrower's jurisdiction of organization;
41
(ii) Regulatory Filings and Approvals. Copies of all necessary
-----------------------------------
governmental and third party approvals, registrations, and filings in
respect of the transactions contemplated by this Agreement;
(iii) Insurance Certificate. An insurance certificate dated not
----------------------
more than ten (10) days prior to the Initial Availability Date from the
Borrower describing in reasonable detail the insurance maintained by the
Borrower and its Subsidiaries as required by this Agreement;
(iv) Opinions of Counsel. The opinions of (x) Baker Botts LLP,
---------------------
counsel for the Borrower, in the form of Exhibit 4.1A, (y) William
-------------
Turcotte, Associate General Counsel of the Borrower, in the form of Exhibit
-------
4.1B, and (z) Walkers, Cayman Islands counsel for the Borrower, in the form
----
of Exhibit 4.1C;
-------------
(v) Closing Certificate. Certificate of the President or a Vice
--------------------
President of the Borrower as to the satisfaction of all conditions set
forth in this Section 4.1; and
(vi) Existing 364-Day Revolving Credit Facility. Evidence that
---------------------------------------------
all commitments of the lenders under the Existing 364-Day Revolving Credit
Facility are being terminated, and all amounts then outstanding under the
Existing 364-Day Revolving Credit Facility are being paid in full,
simultaneously on the Initial Availability Date.
(b) Each of the representations and warranties of the Borrower and its
Subsidiaries set forth herein and in the other Credit Documents shall be true
and correct in all material respects as of the time of such Borrowing, except to
the extent that any such representation or warranty relates solely to an earlier
date, in which case it shall have been true and correct in all material respects
as of such earlier date;
(c) No Default or Event of Default shall have occurred and be
continuing; and
(d) Payment of all fees and all expenses incurred through the Effective
Date then due and owing to the Administrative Agent, the Lenders, and the Lead
Arranger pursuant to this Agreement and as otherwise agreed in writing by the
Borrower.
Section 4.2. All Borrowings and Conversion to Term Loans. The obligation of
-------------------------------------------
each Lender to make any advance of any Loan and to convert outstanding Revolving
Loans to Term Loans pursuant to Section 2.3, and of the Issuing Bank to issue
any Letter of Credit hereunder (including any increase in the amount of, or
extension of the expiration date of, any Letter of Credit) is subject to
satisfaction of the following conditions precedent (but subject to Sections
2.4(c) and 2.14(c)):
(a) Notices. The Administrative Agent shall have received (i) in the
-------
case of any Loan, the Borrowing Request required by the first sentence of
Section 2.4(a), or the Competitive Bid Request and notice of acceptance thereof
pursuant to Section 2.5, as the case may be, (ii) in the case of any conversion
of Revolving Loans to Term Loans pursuant to Section 2.3, the
42
written notice as to the exercise of the Term Loan Option as specified in
Section 2.3, and (iii) in the case of the issuance, extension or increase of a
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received a duly completed Issuance Request and Application for such Letter of
Credit, as the case may be, meeting the requirements of Section 2.14(b);
(b) Warranties True and Correct. In the case of any conversion of
------------------------------
Revolving Loans to Term Loans pursuant to Section 2.3, or any advance,
Borrowing, or issuance or increase of any Letter of Credit that increases the
aggregate amount of Loans and L/C Obligations outstanding after giving effect to
such advance, Borrowing or issuance or increase, each of the representations and
warranties of the Borrower and its Subsidiaries set forth herein (other than
those set forth in Sections 5.4 and 5.10) and in the other Credit Documents
shall be true and correct in all material respects as of the time of such
advance, Borrowing, or issuance or increase of any Letter of Credit, except as a
result of the transactions expressly permitted hereunder or thereunder and
except to the extent that any such representation or warranty relates solely to
an earlier date, in which case it shall have been true and correct in all
material respects as of such earlier date;
(c) No Default. No Default or Event of Default shall have occurred and
----------
be continuing or would occur as a result of any such Borrowing or conversion of
Revolving Loans to Term Loans pursuant to Section 2.3; or
(d) Regulations U and X. The Borrowing to be made by the Borrower
----------------------
shall not result in the Borrower or any Lender or Issuing Bank being in
non-compliance with or in violation of Regulation U or X of the Board of
Governors of the Federal Reserve System.
Each acceptance by the Borrower of an advance of any Loan, the conversion of
Revolving Loans to Term Loans, or of the issuance of, increase in the amount of,
or extension of the expiration date of, a Letter of Credit shall be deemed to be
a representation and warranty by the Borrower on the date of such acceptance,
that all conditions precedent to such Borrowing set forth in this Section 4.2
and in Section 4.1 with respect to the initial Borrowings hereunder have (except
to the extent waived in accordance with the terms hereof) been satisfied or
fulfilled unless the Borrower gives to the Administrative Agent and the Lenders
written notice to the contrary, in which case none of the Lenders shall be
required to fund or convert such Loans, and the Issuing Bank shall not be
required to issue, increase the amount of or extend the expiration date of such
Letter of Credit, unless the Required Lenders shall have previously waived in
writing such non-compliance.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to each Lender, Issuing Bank and
Administrative Agent as follows:
Section 5.1. Corporate Organization. The Borrower and each of its material
----------------------
Subsidiaries: (i) is duly organized and existing in good standing under the laws
of the jurisdiction of its organization; (ii) has all necessary company power
and authority to own the property and assets it uses in its business and
otherwise to carry on its present business; and (iii) is duly
43
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business transacted by it or the nature of the property owned or
leased by it makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified or to be in good standing, as the case
may be, would not have a Material Adverse Effect.
Section 5.2. Power and Authority; Validity. The Borrower has the
--------------------------------
organizational power and authority to execute, deliver and carry out the terms
and provisions of the Credit Documents and has taken all necessary company
action to authorize the execution, delivery and performance of such Credit
Documents. The Borrower has duly executed and delivered each Credit Document and
each such Credit Document constitutes the legal, valid and binding obligation of
the Borrower enforceable against it in accordance with its terms, subject as to
enforcement only to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
equitable principles.
Section 5.3. No Violation. Neither the execution, delivery or performance
------------
by the Borrower of the Credit Documents nor compliance by it with the terms and
provisions thereof, nor the consummation by it of the transactions contemplated
herein or therein, will (i) contravene in any material respect any applicable
provision of any law, statute, rule or regulation, or any applicable order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
conflict with or result in any breach of any term, covenant, condition or other
provision of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien other than any
Permitted Lien upon any of the property or assets of the Borrower or any of its
Subsidiaries under, the terms of any material contractual obligation to which
the Borrower or any of its Subsidiaries is a party or by which they or any of
their properties or assets are bound or to which they may be subject, or (iii)
violate or conflict with any provision of the Memorandum and Articles of
Association, charter, articles or certificate of incorporation, partnership or
limited liability company agreement, by-laws, or other applicable governance
documents of the Borrower or any of its Subsidiaries.
Section 5.4. Litigation. There are no actions, suits, proceedings or
----------
counterclaims (including, without limitation, derivative or injunctive actions)
pending or, to the knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries that are reasonably likely to have a Material Adverse
Effect.
Section 5.5. Use of Proceeds; Margin Regulations.
---------------------------------------
(a) Use of Proceeds. The proceeds of the Loans and the Letters of
-----------------
Credit shall only be used for general corporate purposes of the Borrower and its
Subsidiaries.
(b) Margin Stock. Neither the Borrower nor any of its Subsidiaries is
-------------
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock. No proceeds of the Loans or the Letters of Credit will
be used for a purpose which violates Regulations T, U or X of the Board of
Governors of the Federal Reserve System. After application of the proceeds of
the Loans, the issuance of the Letters of Credit, and any acquisitions permitted
hereunder, less than 25% of the assets of each of the Borrower and its
44
Subsidiaries consists of "margin stock" (as defined in Regulation U of the Board
of Governors of the Federal Reserve System).
Section 5.6. Investment Company Act. Neither the Borrower nor any of its
-----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Section 5.7. Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 5.8. True and Complete Disclosure. All factual information (taken
----------------------------
as a whole) furnished by the Borrower or any of its Subsidiaries in writing to
the Administrative Agent or any Lender in connection with any Credit Document or
the Confidential Information Memorandum or any transaction contemplated therein
did not, as of the date such information was furnished (or, if such information
expressly related to a specific date, as of such specific date), contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein (taken as a whole), in light of the circumstances
under which such information was furnished, not misleading, except for such
statements, if any, as have been updated, corrected, supplemented, superseded or
modified pursuant to a written correction or supplement furnished to the Lenders
prior to the date of this Agreement.
Section 5.9. Financial Statements. The financial statements heretofore
---------------------
delivered to the Lenders for the Borrower's fiscal year ending December 31,
2001, and for the Borrower's fiscal quarter and year-to-date period ending
September 30, 2002, have been prepared in accordance with GAAP applied on a
basis consistent, except as otherwise noted therein, with the Borrower's
financial statements for the previous fiscal year. Such annual and quarterly
financial statements fairly present on a consolidated basis the financial
position of the Borrower as of the dates thereof, and the results of operations
for the periods indicated, subject in the case of interim financial statements,
to normal year-end audit adjustments and omission of certain footnotes (as
permitted by the SEC). As of the Effective Date, the Borrower and its
Subsidiaries, considered as a whole, had no material contingent liabilities or
material Indebtedness required under GAAP to be disclosed in a consolidated
balance sheet of the Borrower that were not disclosed in the financial
statements referred to in this Section 5.9 or in the notes thereto or disclosed
in writing to the Administrative Agent (with a request to the Administrative
Agent to distribute such disclosure to the Lenders).
Section 5.10. No Material Adverse Change. There has occurred no event or
---------------------------
effect that has had or could reasonably be expected to have a Material Adverse
Effect.
Section 5.11. Labor Controversies. There are no labor controversies pending
-------------------
or, to the best knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect.
45
Section 5.12. Taxes. The Borrower and its Subsidiaries have filed all
-----
United States federal income tax returns, and all other material tax returns
required to be filed, whether in the United States or in any foreign
jurisdiction, and have paid all governmental taxes, rates, assessments, fees,
charges and levies (collectively, "Taxes") shown to be due and payable on such
returns or on any assessments made against Borrower and its Subsidiaries or any
of their properties (other than any such assessments, fees, charges or levies
that are not more than ninety (90) days past due, or which can thereafter be
paid without penalty, or which are being contested in good faith by appropriate
proceedings and for which reserves have been provided in conformity with GAAP,
or which the failure to pay could not reasonably be expected to have a Material
Adverse Effect).
Section 5.13. ERISA. With respect to each Plan, the Borrower and its
-----
Subsidiaries have fulfilled their obligations under the minimum funding
standards of, and are in compliance in all material respects with, ERISA and
with the Code to the extent applicable to it, and have not incurred any
liability under Title IV of ERISA to the PBGC other than a liability to the PBGC
for premiums under Section 4007 of ERISA, except as described in Schedule 5.13
and in each case with such exceptions as could not reasonably be expected to
have a Material Adverse Effect. As of the Effective Date, neither the Borrower
nor any of its Subsidiaries has any material contingent liability with respect
to any post-retirement benefits under a welfare plan subject to ERISA, other
than liability for continuation coverage described in Part 6 of Title I of ERISA
and as disclosed in the financial statements of the Borrower for the fiscal
quarter ending September 30, 2002, described in Section 5.9, or any other
liability that could not reasonably be expected to have a Material Adverse
Effect.
Section 5.14. Consents. On the Initial Availability Date, all consents and
--------
approvals of, and filings and registrations with, and all other actions of, all
governmental agencies, authorities or instrumentalities required to have been
obtained or made by the Borrower in order to obtain the Loans and Letters of
Credit hereunder have been or will have been obtained or made and are or will be
in full force and effect.
Section 5.15. Insurance. The Borrower and its material Subsidiaries
---------
currently maintain in effect, with responsible insurance companies, insurance
against any loss or damage to all insurable property and assets owned by it,
which insurance is of a character and in or in excess of such amounts as are
customarily maintained by companies similarly situated and operating like
property or assets (subject to self-insured retentions and deductibles), and
insurance with respect to employers' and public and product liability risks
(subject to self-insured retentions and deductibles).
Section 5.16. Intellectual Property. The Borrower and its Subsidiaries own
---------------------
or hold valid licenses to use all the patents, trademarks, permits, service
marks, and trade names that are necessary to the operation of the business of
the Borrower and its Subsidiaries as presently conducted, except where the
failure to own, or hold valid licenses to use, such patents, trademarks,
permits, service marks, and trade names could not reasonably be expected to have
a Material Adverse Effect.
46
Section 5.17. Ownership of Property. The Borrower and its Subsidiaries have
---------------------
good title to or a valid leasehold interest in all of their real property and
good title to, or a valid leasehold interest in, all of their other property,
subject to no Liens except Permitted Liens, except where the failure to have
such title or leasehold interest in such property could not reasonably be
expected to have a Material Adverse Effect.
Section 5.18. Compliance with Statutes, Etc. The Borrower and its
---------------------------------
Subsidiaries are in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic and foreign, in respect of the conduct of their businesses and the
ownership of their properties, except for such instances of non-compliance as
could not reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect.
Section 5.19. Environmental Matters.
----------------------
(a) Compliance with Environmental Laws. Except as described in
-------------------------------------
Schedule 5.19, the Borrower and its Subsidiaries are in compliance with all
- --------------
applicable Environmental Laws and the requirements of any permits issued under
such Environmental Laws, except for such instances of non-compliance as could
not reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Borrower, there are no pending, past or threatened
Environmental Claims against the Borrower or any of its Subsidiaries on any
property owned or operated by the Borrower or any of its Subsidiaries except as
described in Schedule 5.19 or except as could not reasonably be expected to have
-------------
a Material Adverse Effect. To the best knowledge of the Borrower, there are no
conditions or occurrences on any property owned or operated by the Borrower or
any of its Subsidiaries or on any property adjoining or in the vicinity of any
such property that could reasonably be expected to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries or any such
property that individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect.
(b) Hazardous Materials. To the best of the Borrower's knowledge, (i)
--------------------
Hazardous Materials have not at any time been generated, used, treated or stored
on, or transported to or from, any property owned or operated by the Borrower or
any of its Subsidiaries in a manner that has violated or could reasonably be
expected to violate any Environmental Law, and (ii) Hazardous Materials have not
at any time been released on or from any property owned or operated by the
Borrower or any of its Subsidiaries, in the case of both (i) and (ii), with such
exceptions as could not reasonably be expected to have a Material Adverse
Effect.
Section 5.20. Existing Indebtedness. Schedule 5.20 contains a complete and
--------------------- -------------
accurate list of all Indebtedness outstanding as of the Effective Date, with
respect to the Borrower and its Subsidiaries, in each case in a principal amount
of $20,000,000 or more (other than the Obligations hereunder and Indebtedness
permitted by Section 6.11(b) through (k)) and permitted by Section 6.11(a), in
each case showing the aggregate principal amount thereof, the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such Indebtedness, and the scheduled payments of such Indebtedness.
47
Section 5.21. Existing Liens. Schedule 5.21 contains a complete and
--------------- --------------
accurate list of all Liens outstanding as of the Effective Date, with respect to
the Borrower and its Subsidiaries where the Indebtedness or other obligations
secured by such Lien is in a principal amount of $20,000,000 or more (other than
the Liens permitted by Section 6.10(b) through (r)), and permitted by Section
6.10(a), in each case showing the name of the Person whose assets are subject to
such Lien, the aggregate principal amount of the Indebtedness secured thereby,
and a description of the Agreements or other instruments creating, granting, or
otherwise giving rise to such Lien.
ARTICLE 6. COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Note,
Commitment, or L/C Obligation is outstanding hereunder, or any other Obligation
is due and payable hereunder:
Section 6.1. Corporate Existence. Each of the Borrower and its material
--------------------
Subsidiaries will preserve and maintain its organizational existence, except (i)
for the dissolution of any material Subsidiaries whose assets are transferred to
the Borrower or any of its Subsidiaries, (ii) where the failure to preserve,
renew or keep in full force and effect the existence of any Subsidiary could not
reasonably be expected to have a Material Adverse Effect, or (iii) as otherwise
expressly permitted in this Agreement.
Section 6.2. Maintenance. Each of the Borrower and its material
-----------
Subsidiaries will maintain, preserve and keep its properties and equipment
necessary to the proper conduct of its business in reasonably good repair,
working order and condition (normal wear and tear excepted) and will from time
to time make all reasonably necessary repairs, renewals, replacements, additions
and betterments thereto so that at all times such properties and equipment are
reasonably preserved and maintained, in each case with such exceptions as could
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect; provided, however, that nothing in this Section 6.2 shall
prevent the Borrower or any material Subsidiary from discontinuing the operation
or maintenance of any such properties or equipment if such discontinuance is, in
the judgment of the Borrower or any material Subsidiary, as applicable,
desirable in the conduct of their businesses.
Section 6.3. Taxes. Each of the Borrower and its Subsidiaries will duly pay
-----
and discharge all Taxes upon or against it or its properties before penalties
accrue thereon (or, if later, within ninety (90) days of becoming past due),
unless and to the extent that (i) the same is being contested in good faith and
by appropriate proceedings and reserves have been established in conformity with
GAAP, or (ii) the failure to effect such payment or discharge could not
reasonably be expected to have a Material Adverse Effect.
Section 6.4. ERISA. Each of the Borrower and its Subsidiaries will timely
-----
pay and discharge all obligations and liabilities arising under ERISA or
otherwise with respect to each Plan of a character which if unpaid or
unperformed might result in the imposition of a material Lien against any
properties or assets of the Borrower or any material Subsidiary and will
promptly notify the Administrative Agent upon an officer of the Borrower
becoming aware thereof, of (i) the occurrence of any reportable event (as
defined in ERISA) relating to a Plan
48
(other than a multi-employer plan, as defined in ERISA), so long as the event
thereunder could reasonably be expected to have a Material Adverse Effect, other
than any such event with respect to which the PBGC has waived notice by
regulation; (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor; (iii) Borrower's
or any of its Subsidiaries' intention to terminate or withdraw from any Plan if
such termination or withdrawal would result in liability under Title IV of
ERISA, unless such termination or withdrawal could not reasonably be expected to
have a Material Adverse Effect; and (iv) the receipt by the Borrower or its
Subsidiaries of notice of the occurrence of any event that could reasonably be
expected to result in the incurrence of any liability (other than for benefits),
fine or penalty to the Borrower and/or to the Borrower's Subsidiaries, or any
plan amendment that could reasonably be expected to increase the contingent
liability of the Borrower and its Subsidiaries, taken as a whole, in connection
with any post-retirement benefit under a welfare plan (subject to ERISA), unless
such event or amendment could not reasonably be expected to have a Material
Adverse Effect. The Borrower will also promptly notify the Administrative Agent
of (i) any material contributions to any Foreign Plan that have not been made by
the required due date for such contribution if such default could reasonably be
expected to have a Material Adverse Effect; (ii) any Foreign Plan that is not
funded to the extent required by the law of the jurisdiction whose law governs
such Foreign Plan based on the actuarial assumptions reasonably used at any time
if such underfunding (together with any penalties likely to result) could
reasonably be expected to have a Material Adverse Effect, and (iii) any material
change anticipated to any Foreign Plan that could reasonably be expected to have
a Material Adverse Effect.
Section 6.5. Insurance. Each of the Borrower and its material Subsidiaries
---------
will maintain or cause to be maintained, with responsible insurance companies,
insurance against any loss or damage to all insurable property and assets owned
by it, such insurance to be of a character and in or in excess of such amounts
as are customarily maintained by companies similarly situated and operating like
property or assets (subject to self-insured retentions and deductibles) and will
(subject to self-insured retentions and deductibles) maintain or cause to be
maintained insurance with respect to employers' and public and product liability
risks.
Section 6.6. Financial Reports and Other Information.
-------------------------------------------
(a) Periodic Financial Statements and Other Documents. The Borrower,
---------------------------------------------------
its Subsidiaries and any SPVs will maintain a system of accounting in such
manner as will enable preparation of financial statements in accordance with
GAAP and will furnish to the Lenders and their respective authorized
representatives such information about the business and financial condition of
the Borrower, its Subsidiaries and any SPVs as any Lender may reasonably
request; and, without any request, will furnish to the Administrative Agent:
(i) within sixty (60) days after the end of each of the first
three (3) fiscal quarters of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal quarter and the related consolidated statements of
income and retained earnings and of cash flows for such fiscal quarter and
for the portion of the fiscal year ended with the last day of such fiscal
quarter, all of which shall be in reasonable detail or in the form filed
with the SEC, and certified
49
by the chief financial officer of the Borrower that they fairly present the
financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and changes in their cash
flows for the periods indicated and that they have been prepared in
accordance with GAAP, in each case, subject to normal year-end audit
adjustments and the omission of any footnotes as permitted by the SEC
(delivery to the Administrative Agent of a copy of the Borrower's Form 10-Q
filed with the SEC (without exhibits) in any event will satisfy the
requirements of this subsection subject to Section 6.6(b));
(ii) within one hundred twenty (120) days after the end of each
fiscal year of the Borrower, the consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash flows
for such fiscal year and setting forth consolidated comparative figures as
of the end of and for the preceding fiscal year, audited by an independent
nationally-recognized accounting firm and in the form filed with the SEC
(delivery to the Administrative Agent of a copy of the Borrower's Form 10-K
filed with the SEC (without exhibits) in any event will satisfy the
requirements of this subsection subject to Section 6.6(b));
(iii) commencing with fiscal year 2001, to the extent actually
prepared and approved by the Borrower's board of directors, a projection of
Borrower's consolidated balance sheet and consolidated income, retained
earnings and cash flows for its current fiscal year showing such projected
budget for each fiscal quarter of the Borrower ending during such year; and
(iv) within ten (10) days after the sending or filing thereof,
copies of all financial statements, projections, documents and other
communications that the Borrower sends to its stockholders generally or
files with the SEC or any similar governmental authority (and is publicly
available).
The Administrative Agent will forward promptly to the Lenders the information
provided by the Borrower pursuant to (i) through (iv) above.
(b) Compliance Certificates. Each financial statement furnished to the
-----------------------
Lenders pursuant to subsections (i) and (ii) of Section 6.6(a) shall be (i)
accompanied by additional information setting forth calculations excluding the
effects of any SPVs and containing such calculations for any SPVs as reasonably
requested by the Administrative Agent, and (ii) accompanied by (x) a written
certificate signed by the Borrower's chief financial officer (or other financial
officer of the Borrower), in his or her capacity as such, to the effect that no
Default or Event of Default then exists or, if any such Default or Event of
Default exists as of the date of such certificate, setting forth a description
of such Default or Event of Default and specifying the action, if any, taken by
the Borrower to remedy the same, and (y) a Compliance Certificate in the form of
Exhibit 6.6 showing the Borrower's compliance with certain of the covenants set
- ------------
forth herein.
50
(c) Management Letters. Promptly upon receipt thereof, the Borrower
-------------------
will provide the Administrative Agent with a copy of each report or "management
letter" submitted to the Borrower by its independent accountants or auditors in
connection with any annual, interim or special audit made by them of the books
and records of the Borrower.
(d) Notice of Events Relating to Environmental Laws and Claims.
------------------------------------------------------------------
Promptly after any officer of the Borrower obtains knowledge of any of the
following, the Borrower will provide the Administrative Agent with written
notice in reasonable detail of any of the following that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim against the
Borrower, any of its Subsidiaries or any SPV or any property owned or
operated by the Borrower, any of its Subsidiaries or any SPV;
(ii) any condition or occurrence on any property owned or operated
by the Borrower, any of its Subsidiaries or any SPV that results in
noncompliance by the Borrower, any of its Subsidiaries or any SPV with any
Environmental Law; and
(iii) the taking of any material remedial action in response to
the actual or alleged presence of any Hazardous Material on any property
owned or operated by the Borrower, any of its Subsidiaries or any SPV other
than in the ordinary course of business.
(e) Notices of Default, Litigation, Etc. The Borrower will promptly,
-------------------------------------
and in any event within five (5) Days, after an officer of the Borrower has
knowledge thereof, give written notice to the Administrative Agent of (who will
in turn provide notice to the Lenders of): (i) the occurrence of any Default or
Event of Default; (ii) any litigation or governmental proceeding of the type
described in Section 5.4; (iii) any circumstance that has had or could
reasonably be expected to have a Material Adverse Effect; (iv) the occurrence of
any event which has resulted in a breach of, or is likely to result in a breach
of, Sections 6.16 or 6.17; and (v) any notice received by it, any Subsidiary or
any SPV from the holder(s) of Indebtedness of the Borrower, any Subsidiary or
any SPV in an amount which, in the aggregate, exceeds $50,000,000, where such
notice states or claims the existence or occurrence of any default or event of
default with respect to such Indebtedness under the terms of any indenture, loan
or credit agreement, debenture, note, or other document evidencing or governing
such Indebtedness.
Section 6.7. Lender Inspection Rights. Upon reasonable notice from the
--------------------------
Administrative Agent or any Lender, the Borrower will permit the Administrative
Agent or any Lender (and such Persons as the Administrative Agent or such Lender
may reasonably designate) during normal business hours at such entity's sole
expense unless a Default or Event of Default shall have occurred and be
continuing, in which event at the Borrower's expense, to visit and inspect any
of the properties of the Borrower or any of its Subsidiaries, to examine all of
their books and records, to make copies and extracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective officers
and independent public accountants (and by this provision the Borrower
authorizes such accountants to discuss with the Administrative
51
Agent and any Lender (and such Persons as the Administrative Agent or such
Lender may reasonably designate) the affairs, finances and accounts of the
Borrower and its Subsidiaries), all as often, and to such extent, as may be
reasonably requested. The chief financial officer of the Borrower and/or his or
her designee shall be afforded the opportunity to be present at any meeting of
the Administrative Agent or the Lenders and such accountants. The Administrative
Agent agrees to use reasonable efforts to minimize, to the extent practicable,
the number of separate requests from the Lenders to exercise their rights under
this Section 6.7 and/or Section 6.6 and to coordinate the exercise by the
Lenders of such rights.
Section 6.8. Conduct of Business. The Borrower and its Subsidiaries will at
-------------------
all times remain primarily engaged in (i) the contract drilling business, (ii)
the provision of services to the energy industry, (iii) other existing
businesses described in the Borrower's current SEC reports, or (iv) any related
businesses (each a "Permitted Business").
Section 6.9. Restrictions on Fundamental Changes. The Borrower shall not
------------------------------------
merge or consolidate with any other Person, or cause or permit any dissolution
of the Borrower or liquidation of its assets, or sell, transfer or otherwise
dispose of all or substantially all of the Borrower's assets, except that:
(a) The Borrower or any of its Subsidiaries may merge into, or
consolidate with, any other Person if upon the consummation of any such merger
or consolidation the Borrower or such Subsidiary is the surviving corporation to
any such merger or consolidation (or the other Person is, or will thereby
become, a Subsidiary of the Borrower); and
(b) The Borrower may sell or transfer all or substantially all of its
assets (including stock in its Subsidiaries) to any Person if such Person is a
Subsidiary of the Borrower (or a Person who will contemporaneously therewith
become a Subsidiary of the Borrower);
provided in the case of any transaction described in the preceding clauses (a)
and (b), no Default or Event of Default shall exist immediately prior to, or
after giving effect to, such transaction.
Section 6.10. Liens. The Borrower and its Subsidiaries shall not create,
-----
incur, assume or suffer to exist any Lien of any kind on any property or asset
of any kind of the Borrower or any Subsidiary, except the following
(collectively, the "Permitted Liens"):
(a) Liens existing on the date hereof (each such Lien, to the extent it
secures Indebtedness or other obligations in an aggregate amount of $20,000,000
or more, being described on Schedule 5.21 attached hereto);
--------------
(b) Liens arising in the ordinary course of business by operation of
law, deposits, pledges or other Liens in connection with workers' compensation,
unemployment insurance, old age benefits, social security obligations, taxes,
assessments, public or statutory obligations or other similar charges, good
faith deposits, pledges or other Liens in connection with (or to obtain letters
of credit in connection with) bids, performance, return-of-money or payment
bonds, contracts or leases to which the Borrower or its Subsidiaries are parties
or other deposits required to be made in the ordinary course of business;
provided that in each case the obligation secured
52
is not for Indebtedness for borrowed money and is not overdue or, if overdue, is
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor;
(c) mechanics', workmen's, materialmen's, landlords', carriers' or
other similar Liens arising in the ordinary course of business (or deposits to
obtain the release of such Liens) related to obligations not overdue for more
than thirty (30) days if such Liens arise with respect to domestic assets and
for more than ninety (90) days if such Liens arise with respect to foreign
assets, or, if so overdue, that are being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP have been provided therefor, or
if such Liens otherwise could not reasonably be expected to have a Material
Adverse Effect;
(d) Liens for Taxes not more than ninety (90) days past due or which
can thereafter be paid without penalty or which are being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP have been
provided therefor, or if such Liens otherwise could not reasonably be expected
to have a Material Adverse Effect;
(e) Liens imposed by ERISA (or comparable foreign laws) which are being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP have been provided therefor, or if such Liens otherwise could not
reasonably be expected to have a Material Adverse Effect;
(f) Liens arising out of judgments or awards against the Borrower or
any of its Subsidiaries, or in connection with surety or appeal bonds or the
like in connection with bonding such judgments or awards, the time for appeal
from which or petition for rehearing of which shall not have expired or for
which the Borrower or such Subsidiary shall be prosecuting on appeal or
proceeding for review, and for which it shall have obtained (within thirty (30)
days with respect to a judgment or award rendered in the United States or within
sixty (60) days with respect to a judgment or award rendered in a foreign
jurisdiction after entry of such judgment or award or expiration of any previous
such stay, as applicable) a stay of execution or the like pending such appeal or
proceeding for review; provided, that the aggregate amount of uninsured or
underinsured liabilities (net of customary deductibles, and including interest,
costs, fees and penalties, if any) of the Borrower and its Subsidiaries secured
by such Liens shall not exceed $50,000,000 at any one time outstanding;
(g) Liens on fixed or capital assets and related inventory and
intangible assets acquired, constructed, improved, altered or repaired by the
Borrower or any Subsidiary; provided that (i) such Liens secure Indebtedness
otherwise permitted by this Agreement, (ii) such Liens and the Indebtedness
secured thereby are incurred prior to or within 365 days after such acquisition
or the later of the completion of such construction, improvement, alteration or
repair or the date of commercial operation of the assets constructed, improved,
altered or repaired, (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing, improving, altering or repairing such fixed or
capital assets, as the case may be, and (iv) such Lien shall not apply to any
other property or assets of the Borrower or any Subsidiary;
53
(h) Liens securing Interest Rate Protection Agreements or foreign
exchange hedging obligations incurred in the ordinary course of business and not
for speculative purposes;
(i) Liens on property existing at the time such property is acquired by
the Borrower or any Subsidiary of the Borrower and not created in contemplation
of such acquisition (or on repairs, renewals, replacements, additions,
accessions and betterments thereto), and Liens on the assets of any Person at
the time such Person becomes a Subsidiary of the Borrower and not created in
contemplation of such Person becoming a Subsidiary of the Borrower (or on
repairs, renewals, replacements, additions, accessions and betterments thereto;
(j) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing subsections (a) through (i), provided, however, that the principal
amount of Indebtedness secured thereby does not exceed the principal amount
secured at the time of such extension, renewal or replacement (other than
amounts incurred to pay costs of such extension, renewal or replacement), and
that such extension, renewal or replacement is limited to the property already
subject to the Lien so extended, renewed or replaced (together with accessions
and improvements thereto and replacements thereof);
(k) rights reserved to or vested in any municipality or governmental,
statutory or public authority by the terms of any right, power, franchise,
grant, license or permit, or by any provision of law, to terminate such right,
power, franchise, grant, license or permit or to purchase, condemn, expropriate
or recapture or to designate a purchaser of any of the property of a Person;
(l) rights reserved to or vested in any municipality or governmental,
statutory or public authority to control, regulate or use any property of a
Person;
(m) rights of a common owner of any interest in property held by a
Person and such common owner as tenants in common or through other common
ownership;
(n) encumbrances (other than to secure the payment of Indebtedness),
easements, restrictions, servitudes, permits, conditions, covenants, exceptions
or reservations in any property or rights-of-way of a Person for the purpose of
roads, pipelines, transmission lines, transportation lines, distribution lines,
removal of gas, oil, coal, metals, steam, minerals, timber or other natural
resources, and other like purposes, or for the joint or common use of real
property, rights-of-way, facilities or equipment, or defects, irregularity and
deficiencies in title of any property or rights-of-way;
(o) Liens created by or resulting from zoning, planning and
environmental laws and ordinances and municipal regulations;
(p) Liens created by or resulting from financing statements filed by
lessors of property (but only with respect to the property so leased);
(q) Liens on property securing Non-recourse Debt;
54
(r) Liens on the stock or assets of SPVs; and
(s) Liens (not otherwise permitted by this Section 6.10) on property
securing Indebtedness (or other obligations) not exceeding $175,000,000 in the
aggregate at any time outstanding.
Section 6.11. Indebtedness. The Borrower and its Subsidiaries shall not
------------
incur, assume or suffer to exist any Indebtedness, except:
(a) existing Indebtedness outstanding on the Effective Date (such
Indebtedness, to the extent the principal amount thereof is $20,000,000 or more,
being described on Schedule 5.20 attached hereto), and any subsequent
--------------
extensions, renewals or refinancings thereof so long as such Indebtedness is not
increased in amount (other than amounts incurred to pay costs of such extension,
renewal or refinancing), the scheduled maturity date thereof (if prior to the
Maturity Date) is not accelerated, the interest rate per annum applicable
thereto is not increased, any scheduled amortization of principal thereunder
prior to the Maturity Date is not shortened and the payments thereunder are not
increased;
(b) Indebtedness under the Credit Documents;
(c) intercompany loans and advances to the Borrower or its
Subsidiaries, and intercompany loans and advances from any of such Subsidiaries
or SPVs to the Borrower or any other Subsidiaries of the Borrower;
(d) Indebtedness under any Interest Rate Protection Agreements and any
Currency Rate Protection Agreements;
(e) Indebtedness of the Borrower that may be incurred, assumed or
suffered to exist without violating any section of this Agreement, including,
without limitation, Sections 6.16 and 6.17 hereof;
(f) Indebtedness of any Subsidiary of the Borrower (i) under unsecured
lines of credit for overdrafts or for working capital purposes in foreign
countries with financial institutions, and (ii) arising from the honoring by a
bank or other Person of a check, draft or similar instrument inadvertently
drawing against insufficient funds, all such Indebtedness not to exceed
$100,000,000 in the aggregate at any time outstanding, provided that amounts
under overdraft lines of credit or outstanding as a result of drawings against
insufficient funds shall be outstanding for one (1) Business Day before being
included in such aggregate amount;
(g) Indebtedness of a Person existing at the time such Person becomes a
Subsidiary of the Borrower or is merged with or into the Borrower or any
Subsidiary of the Borrower and not incurred in contemplation of such
transaction;
55
(h) Indebtedness of the Borrower or any Subsidiary of the Borrower (i)
under Performance Guaranties and Performance Letters of Credit, and (ii) with
respect to letters of credit issued in the ordinary course of business;
(i) Indebtedness of any Subsidiaries of the Borrower in an aggregate
principal amount for all Subsidiaries not to exceed an amount equal to ten
percent (10%) of Consolidated Net Assets (the "Subsidiary Debt Basket Amount")
in the aggregate at any time outstanding;
(j) other Indebtedness of any Subsidiary of the Borrower so long as
such Subsidiary has in force a Subsidiary Guaranty in substantially the form of
Exhibit 6.11, provided that such Subsidiary Guaranty shall contain a provision
- -------------
that such Subsidiary Guaranty and all obligations thereunder of the Guarantor
party thereto shall be terminated upon delivery to the Administrative Agent by
the Borrower of a certificate stating that (x) the aggregate principal amount of
Indebtedness of all Subsidiaries outstanding pursuant to the preceding clause
(i) and this clause (j) is equal to or less than the Subsidiary Debt Basket
Amount, and (y) no Default or Event of Default has occurred and is continuing;
and
(k) extensions, renewals or replacements of Indebtedness permitted by
this Section 6.11 that do not increase the amount of such Indebtedness (other
than amounts incurred to pay costs of such extension, renewal or refinancing).
Section 6.12. Use of Property and Facilities; Environmental Laws. The
------------------------------------------------------
Borrower and its Subsidiaries shall comply in all material respects with all
Environmental Laws applicable to or affecting the properties or business
operations of the Borrower or any Subsidiary of the Borrower, where the failure
to comply could reasonably be expected to have a Material Adverse Effect.
Section 6.13. Transactions with Affiliates. Except as otherwise
------------------------------
specifically permitted herein, the Borrower and its Subsidiaries shall not
(except pursuant to contracts outstanding as of (i) with respect to the
Borrower, the Effective Date or (ii) with respect to any Subsidiary of the
Borrower, the Effective Date or, if later, the date such Subsidiary first became
a Subsidiary of the Borrower) enter into or engage in any material transaction
or arrangement or series of related transactions or arrangements which in the
aggregate would be material with any Controlling Affiliate, including without
limitation, the purchase from, sale to or exchange of property with, any merger
or consolidation with or into, or the rendering of any service by or for, any
Controlling Affiliate, except pursuant to the requirements of the Borrower's or
such Subsidiary's business and unless such transaction or arrangement or series
of related transactions or arrangements, taken as a whole, are no less favorable
to the Borrower or such Subsidiary (other than a wholly owned Subsidiary) than
would be obtained in an arms' length transaction with a Person not a Controlling
Affiliate.
Section 6.14. Sale and Leaseback Transactions. The Borrower will not, and
-------------------------------
will not permit any of its Subsidiaries to, enter into, assume, or suffer to
exist any Sale-Leaseback Transaction, except any such transaction that may be
entered into, assumed or suffered to exist without violating any other provision
of this Agreement, including without limitation, Sections 6.16 and 6.17.
56
Section 6.15. Compliance with Laws. Without limiting any of the other
----------------------
covenants of the Borrower in this Article 6, the Borrower and its Subsidiaries
shall conduct their business, and otherwise be, in compliance with all
applicable laws, regulations, ordinances and orders of any governmental or
judicial authorities; provided, however, that this Section 6.15 shall not
require the Borrower or any Subsidiary of the Borrower to comply with any such
law, regulation, ordinance or order if (x) it shall be contesting such law,
regulation, ordinance or order in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor, or (y) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
Section 6.16. Interest Coverage Ratio. The Borrower will not permit the
-------------------------
Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to
be less than 3:00 to 1:00.
Section 6.17. Indebtedness to Total Capitalization Ratio. The Borrower
------------------------------------------
will maintain, as of the end of each fiscal quarter of the Borrower, a ratio
(expressed as a percentage) of Consolidated Indebtedness to Total Capitalization
of no greater than 40%.
ARTICLE 7. EVENTS OF DEFAULT AND REMEDIES.
Section 7.1. Events of Default. Any one or more of the following shall
-------------------
constitute an Event of Default:
(a) default by the Borrower in the payment of any principal amount of
any Loan or Reimbursement Obligation, any interest thereon or any fees payable
hereunder, within two (2) Business Days following the date when due;
(b) default by the Borrower in the observance or performance of any
covenant set forth in Sections 6.9, 6.10, 6.16, or 6.17;
(c) default by the Borrower in the observance or performance of any
provision hereof or of any other Credit Document not mentioned in clauses (a) or
(b) above, which is not remedied within thirty (30) days after notice thereof to
the Borrower by the Administrative Agent;
(d) any representation or warranty made or deemed made herein or in any
other Credit Document by the Borrower or any Subsidiary proves untrue in any
material respect as of the date of the making, or deemed making, thereof;
(e) (x) Indedtedness in the aggregate principal amount of $50,000,000
of the Borrower and its Subsidiaries ("Material Indebtedness") shall (i) not be
paid at maturity (beyond any applicable grace periods), or (ii) be declared to
be due and payable or required to be prepaid, redeemed or repurchased prior to
its stated maturity, or (y) any default in respect of Material Indedtedness
shall occur which permits the holders thereof, or any trustees or agents on
their
57
behalf, to accelerate the maturity of such Indedtedness or requires such
Indedtedness to be prepaid, redeemed, or repurchased prior to its stated
maturity;
(f) the Borrower or any Significant Subsidiary (i) has entered
involuntarily against it an order for relief under the United States Bankruptcy
Code or a comparable action is taken under any bankruptcy or insolvency law of
another country or political subdivision of such country, (ii) generally does
not pay, or admits its inability generally to pay, its debts as they become due,
(iii) makes a general assignment for the benefit of creditors, (iv) applies for,
seeks, consents to, or acquiesces in, the appointment of a receiver, custodian,
trustee, liquidator or similar official for it or any substantial part of its
property under the Bankruptcy Code or under the bankruptcy or insolvency laws of
another country or a political subdivision of such country, (v) institutes any
proceeding seeking to have entered against it an order for relief under the
United States Bankruptcy Code or any comparable law, to adjudicate it insolvent,
or seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fails to file
an answer or other pleading denying the material allegations of or consents to
or acquiesces in any such proceeding filed against it, (vi) makes any board of
directors resolution in direct furtherance of any matter described in clauses
(i)-(v) above, or (vii) fails to contest in good faith any appointment or
proceeding described in this Section 7.1(f);
(g) a custodian, receiver, trustee, liquidator or similar official is
appointed for the Borrower or any Significant Subsidiary or any substantial part
of its property under the Bankruptcy Code or under the bankruptcy or insolvency
laws of another country or a political subdivision of such country, or a
proceeding described in Section 7.1(f)(v) is instituted against the Borrower or
any Significant Subsidiary, and such appointment continues undischarged or such
proceeding continues undismissed and unstayed for a period of sixty (60) days
(or one hundred twenty (120) days in the case of any such event occurring
outside the United States of America);
(h) the Borrower or any Subsidiaries of the Borrower fail within thirty
(30) days with respect to any judgments or orders that are rendered in the
United States or sixty (60) days with respect to any judgments or orders that
are rendered in foreign jurisdictions (or such earlier date as any execution on
such judgments or orders shall take place) to vacate, pay, bond or otherwise
discharge any judgments or orders for the payment of money the uninsured portion
of which is in excess of $50,000,000 in the aggregate and which are not stayed
on appeal or otherwise being appropriately contested in good faith in a manner
that stays execution;
(i) (x) the Borrower or any Subsidiary of the Borrower fails to pay
when due an amount that it is liable to pay to the PBGC or to a Plan under Title
IV of ERISA; or a notice of intent to terminate a Plan having Unfunded Vested
Liabilities of the Borrower or any of its Subsidiaries in excess of $50,000,000
(a "Material Plan") is filed under Title IV of ERISA; or the PBGC institutes
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any Material Plan or a proceeding is instituted by a
fiduciary of any Material Plan against any Borrower or any Subsidiary to collect
any liability under Section 515 or 4219(c)(5) of ERISA, and in each case such
proceeding is not dismissed within thirty (30) days thereafter; or a condition
exists by reason of which the PBGC would be entitled to obtain a
58
decree adjudicating that any Material Plan must be terminated, and (y) the
occurrence of one or more of the matters in the preceding clause (x) could
reasonably be expected to result in liabilities in excess of $50,000,000; or
(j) any Person or group of Persons acting in concert (as such terms are
used in Rule 13d-5 under the Securities Exchange Act of 1934, as amended) shall
own, directly or indirectly, beneficially or of record, securities of the
Borrower (or other securities convertible into such securities) representing
fifty percent (50%) or more of the combined voting power of all outstanding
securities of the Borrower entitled to vote in the election of directors, other
than securities having such power only by reason of the happening of a
contingency.
Section 7.2. Non-Bankruptcy Defaults. When any Event of Default (other than
-----------------------
those described in subsections (f) or (g) of Section 7.1 with respect to the
Borrower) has occurred and is continuing, the Administrative Agent shall, by
notice to the Borrower: (a) if so directed by the Required Lenders, terminate
the remaining Commitments to the Borrower hereunder on the date stated in such
notice (which may be the date thereof); (b) if so directed by the Required
Lenders, declare the principal of and the accrued interest on all outstanding
Loans to be forthwith due and payable and thereupon all outstanding Loans,
including both principal and interest thereon, shall be and become immediately
due and payable together with all other accrued amounts payable under the Credit
Documents without further demand, presentment, protest or notice of any kind,
including, but not limited to, notice of intent to accelerate and notice of
acceleration, each of which is expressly waived by the Borrower; and (c) if so
directed by the Required Lenders, demand that the Borrower immediately pay to
the Administrative Agent (to be held by the Administrative Agent pursuant to
Section 7.4) the full amount then available for drawing under each outstanding
Letter of Credit, and the Borrower agrees to immediately make such payment and
acknowledges and agrees that the Lenders, the Issuing Bank and the
Administrative Agent would not have an adequate remedy at law for failure by the
Borrower to honor any such demand and that the Administrative Agent, for the
benefit of the Lenders and the Issuing Bank, shall have the right to require the
Borrower to specifically perform such undertaking whether or not any drawings or
other demands for payment have been made under any Letter of Credit. The
Administrative Agent, after giving notice to the Borrower pursuant to this
Section 7.2, shall also promptly send a copy of such notice to the other Lenders
and the Issuing Bank, but the failure to do so shall not impair or annul the
effect of such notice.
Section 7.3. Bankruptcy Defaults. When any Event of Default described in
--------------------
subsections (f) or (g) of Section 7.1 has occurred and is continuing with
respect to the Borrower, then all outstanding Loans shall immediately become due
and payable together with all other accrued amounts payable under the Credit
Documents without presentment, demand, protest or notice of any kind, each of
which is expressly waived by the Borrower; and all obligations of the Lenders
and the Issuing Bank to extend further credit pursuant to any of the terms
hereof shall immediately terminate and the Borrower shall immediately pay to the
Administrative Agent (to be held by the Administrative Agent pursuant to Section
7.4) the full amount then available for drawing under all outstanding Letters of
Credit, the Borrower acknowledging that the Lenders, the Issuing Bank, and the
Administrative Agent would not have an adequate remedy at law for failure by the
Borrower to honor any such demand and that the Lenders, the Issuing Bank, and
the Administrative Agent shall have the right to require the Borrower to
specifically perform
59
such undertaking whether or not any drawings or other demands for payment have
been made under any of the Letters of Credit.
Section 7.4. Collateral for Undrawn Letters of Credit.
---------------------------------------------
(a) If the prepayment of the amount available for drawing under any or
all outstanding Letters of Credit is required under Section 7.2 or 7.3, the
Borrower shall forthwith pay the amount required to be so prepaid, to be held by
the Administrative Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held
by the Administrative Agent in a separate collateral account (such account, and
the credit balances, properties and any investments from time to time held
therein, and any substitutions for such account, any certificate of deposit or
other instrument evidencing any of the foregoing and all proceeds of and
earnings on any of the foregoing being collectively called the "Collateral
Account") as security for, and for application to, the reimbursement of any
drawing under any Letter of Credit then or thereafter paid by the Issuing Bank,
and to the payment of the unpaid balance of any Loans and all other due and
unpaid Obligations (collectively, the "Collateralized Obligations"). The
Collateral Account shall be held in the name of and subject to the exclusive
dominion and control of the Administrative Agent, for the benefit of the Issuing
Bank, the Administrative Agent, and the Lenders, as pledgee hereunder. If and
when required by the Borrower, the Administrative Agent shall invest and
reinvest funds held in the Collateral Account from time to time in Cash
Equivalents specified from time to time by the Borrower, provided that the
Administrative Agent is irrevocably authorized to sell on market terms any
investments held in the Collateral Account when and as required to make payments
out of the Collateral Account for application to Collateralized Obligations due
and owing from the Borrower to the Issuing Bank, the Administrative Agent, or
the Lenders. When and if (A) (i) the Borrower shall have made payment of all
Collateralized Obligations then due and payable, and (ii) all relevant
preference or other disgorgement periods relating to the receipt of such
payments have passed, or (B) no Default or Event of Default shall be continuing,
the Administrative Agent shall repay to the Borrower any remaining amounts and
assets held in the Collateral Account, provided that if the Collateral Account
is being released pursuant to clause (A) and any Letter of Credit then remains
outstanding, the Borrower, prior to or contemporaneously with such release,
shall make arrangements with respect to such outstanding Letters of Credit in
the manner described in the first sentence of Section 2.15. In addition, if the
aggregate amount on deposit with the Collateral Agent exceeds the Collateralized
Obligations then existing, then the Administrative Agent shall release and
deliver such excess amount upon the written request of the Borrower.
Section 7.5. Notice of Default. The Administrative Agent shall give notice
-----------------
to the Borrower under Section 7.2 promptly upon being requested to do so by the
Required Lenders and shall thereupon notify all the Lenders thereof.
Section 7.6. Expenses. The Borrower agrees to pay to the Administrative
--------
Agent, the Issuing Bank, and each Lender all reasonable out-of-pocket expenses
incurred or paid by the Administrative Agent, the Issuing Bank, or such Lender,
including reasonable attorneys' fees
60
and court costs, in connection with any Default or Event of Default hereunder or
in connection with the enforcement of any of the Credit Documents.
Section 7.7. Distribution and Application of Proceeds. After the occurrence
----------------------------------------
of and during the continuance of an Event of Default, any payment to the
Administrative Agent, the Issuing Bank, or any Lender hereunder or from the
proceeds of the Collateral Account or otherwise shall be paid to the
Administrative Agent to be distributed and applied as follows (unless otherwise
agreed by the Borrower, the Administrative Agent, the Issuing Bank, and all
Lenders):
(a) First, to the payment of any and all reasonable out-of-pocket costs
and expenses of the Administrative Agent, including without limitation,
reasonable attorneys' fees and out-of-pocket costs and expenses, as provided by
this Agreement or by any other Credit Document, incurred in connection with the
collection of such payment or in respect of the enforcement of any rights of the
Administrative Agent, the Issuing Bank, or the Lenders under this Agreement or
any other Credit Document;
(b) Second, to the payment of any and all reasonable out-of-pocket
costs and expenses of the Issuing Bank and the Lenders, including, without
limitation, reasonable attorneys' fees and out-of-pocket costs and expenses, as
provided by this Agreement or by any other Credit Document, incurred in
connection with the collection of such payment or in respect of the enforcement
of any rights of the Lenders or the Issuing Bank under this Agreement or any
other Credit Document, pro rata in the proportion in which the amount of such
costs and expenses unpaid to each Lender or the Issuing Bank bears to the
aggregate amount of the costs and expenses unpaid to all Lenders and the Issuing
Bank collectively, until all such fees, costs and expenses have been paid in
full;
(c) Third, to the payment of any due and unpaid fees to the
Administrative Agent or any Lender or Issuing Bank as provided by this Agreement
or any other Credit Document, pro rata in the proportion in which the amount of
such fees due and unpaid to the Administrative Agent and each Lender and Issuing
Bank bears to the aggregate amount of the fees due and unpaid to the
Administrative Agent and all Lenders and Issuing Bank collectively, until all
such fees have been paid in full;
(d) Fourth, to the payment of accrued and unpaid interest on the Loans
or the Reimbursement Obligations to the date of such application, pro rata in
the proportion in which the amount of such interest, accrued and unpaid to each
Lender or the Issuing Bank bears to the aggregate amount of such interest
accrued and unpaid to all Lenders and the Issuing Bank collectively, until all
such accrued and unpaid interest has been paid in full;
(e) Fifth, to the payment of the outstanding due and payable principal
amount of each of the Loans and the amount of the outstanding Reimbursement
Obligations (reserving cash collateral for all undrawn face amounts of any
outstanding Letters of Credit (if Section 7.4(a) has not been complied with)),
pro rata in the proportion in which the outstanding principal amount of such
Loans and the amount of such outstanding Reimbursement Obligations owing to each
Lender and Issuing Bank, together (if Section 7.4(a) has not been complied with)
with the
61
undrawn face amounts of such outstanding Letters of Credit, bears to the
aggregate amount of all outstanding Loans, outstanding Reimbursement Obligations
and (if Section 7.4(a) has not been complied with) the undrawn face amounts of
all outstanding Letters of Credit. In the event that any such Letters of Credit,
or any portions thereof, expire without being drawn, any cash collateral
therefor shall be distributed by the Administrative Agent until the principal
amount of all Loans and Reimbursement Obligations shall have been paid in full;
(f) Sixth, to the payment of any other outstanding Obligations then due
and payable, pro rata in the proportion in which the outstanding Obligations
owing to each Lender, Issuing Bank and Administrative Agent bears to the
aggregate amount of all such Obligations until all such Obligations have been
paid in full; and
(g) Seventh, to the Borrower or as the Borrower may direct.
ARTICLE 8. CHANGE IN CIRCUMSTANCES.
Section 8.1. Change of Law.
---------------
(a) Notwithstanding any other provisions of this Agreement or any Note,
if at any time any change, after the date hereof (or, if later, after the date
the Administrative Agent or any Issuing Bank or Lender becomes the
Administrative Agent or an Issuing Bank or Lender), in applicable law or
regulation or in the interpretation thereof makes it unlawful for any Lender to
make or maintain Eurocurrency Loans, or the Issuing Bank to issue any Letter of
Credit, such Lender or Issuing Bank, as the case may be, shall promptly give
written notice thereof and of the basis therefor in reasonable detail to the
Borrower, and such Lender's or Issuing Bank's obligations to fund affected
Eurocurrency Loans or make, continue or convert such Loans under this Agreement,
or to issue any such Letters of Credit, as the case may be, shall thereupon be
suspended until it is no longer unlawful for such Lender to make or maintain
such Loans or issue such Letters of Credit.
(b) Upon the giving of the notice to Borrower referred to in subsection
(a) above in respect of any such Loan, (i) any outstanding such Loan of such
Lender shall be automatically converted to a Base Rate Loan in Dollars on the
last day of the Interest Period then applicable thereto or on such earlier date
as required by law, and (ii) such Lender shall make or continue its portion of
any requested Borrowing of such Loan as a Base Rate Loan in Dollars, which Base
Rate Loan shall, for all other purposes, be considered part of such Borrowing.
(c) Any Lender or Issuing Bank that has given any notice pursuant to
Section 8.1(a) shall, upon determining that it would no longer be unlawful for
it to make such Loans or issue such Letters of Credit, give prompt written
notice thereof to the Borrower and the Administrative Agent, and upon giving
such notice, its obligation to make, allow conversions into and maintain such
Loans or issue such Letters of Credit shall be reinstated.
Section 8.2. Unavailability of Deposits or Inability to Ascertain LIBOR
------------------------------------------------------------
Rate. If on or before the first day of any Interest Period for any Borrowing of
- ----
Eurocurrency Loans the
62
Administrative Agent determines in good faith (after consultation with the other
Lenders) that, due to changes in circumstances since the date hereof, adequate
and fair means do not exist for determining the LIBOR Rate or such rate will not
accurately reflect the cost to the Required Lenders of funding Eurocurrency
Loans for such Interest Period, the Administrative Agent shall give written
notice (in reasonable detail) of such determination and of the basis therefor to
the Borrower and the Lenders, whereupon until the Administrative Agent notifies
the Borrower and Lenders that the circumstances giving rise to such suspension
no longer exist (which the Administrative Agent shall do promptly after they do
not exist), (i) the obligations of the Lenders to make, continue or convert
Loans as or into such Eurocurrency Loans, or to convert Base Rate Loans into
such Eurocurrency Loans, shall be suspended and (ii) each Eurocurrency Loan will
automatically on the last day of the then existing Interest Period therefor,
convert into a Base Rate Loan in Dollars.
Section 8.3. Increased Cost and Reduced Return.
-------------------------------------
(a) If, on or after the date hereof, the adoption of or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or Issuing Bank (or its Lending Office), with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency exercising control over banks or financial
institutions generally issued after the date hereof (or, if later, after the
date the Administrative Agent, Issuing Bank, or Lender becomes the
Administrative Agent, Issuing Bank, or Lender):
(i) subjects any Lender or Issuing Bank (or its Lending Office) to
any tax, duty or other charge related to any Eurocurrency Loan, Competitive
Fixed Rate Loan, Reimbursement Obligation, or its obligation to advance or
maintain Eurocurrency Loans, Competitive Fixed Rate Loans, or issue any
Letter of Credit, or shall change the basis of taxation of payments to any
Lender or Issuing Bank (or its Lending Office) of the principal of or
interest on its Eurocurrency Loans, Competitive Fixed Rate Loans, Letters
of Credit or Reimbursement Obligation or any participations in any thereof,
or any other amounts due under this Agreement related to its Eurocurrency
Loans, Competitive Fixed Rate Loans, Letters of Credit, Reimbursement
Obligations or participations therein, or its obligation to make
Eurocurrency Loans and Competitive Fixed Rate Loans, issue Letters of
Credit, or acquire participations therein (except for changes with respect
to taxes that are not Indemnified Taxes pursuant to Section 3.3); or
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding for any Eurocurrency Loan any such requirement
included in an applicable Statutory Reserve Rate) against assets of,
deposits with or for the account of, or credit extended by, any Lender or
Issuing Bank (or its Lending Office) or imposes on any Lender or Issuing
Bank (or its Lending Office) or on the interbank market any other condition
affecting its Eurocurrency Loans, Letters of Credit, any Reimbursement
Obligations owed to it, or its participation in any
63
thereof, or its obligation to advance or maintain Eurocurrency Loans, issue
Letters of Credit or participate in any thereof;
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Bank (or its Lending Office) of advancing or maintaining any
Eurocurrency Loan or Competitive Fixed Rate Loan, issuing or maintaining a
Letter of Credit or participating therein, or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank (or its Lending Office) in
connection therewith under this Agreement or its Note, by an amount deemed by
such Lender or Issuing Bank to be material, then, subject to Section 8.3(c),
from time to time, within thirty (30) days after receipt of a certificate from
such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant
to subsection (c) below setting forth in reasonable detail such determination
and the basis thereof, the Borrower shall be obligated to pay to such Lender or
Issuing Bank such additional amount or amounts as will compensate such Lender or
Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, the Administrative Agent or any Lender
or Issuing Bank shall have reasonably determined that the adoption after the
date hereof of any applicable law, rule or regulation regarding capital
adequacy, or any change therein (including, without limitation, any revision in
the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) or of
the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in
any other applicable capital adequacy rules heretofore adopted and issued by any
governmental authority), or any change after the date hereof in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Administrative Agent or any Lender or Issuing Bank
(or its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or Issuing Bank's capital, or on the capital of any corporation
controlling such Lender or Issuing Bank, as a consequence of its obligations
hereunder to a level below that which such Lender or Issuing Bank could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or Issuing Bank's or its controlling corporation's policies with
respect to capital adequacy in effect immediately before such adoption, change
or compliance) by an amount reasonably deemed by such Lender or Issuing Bank to
be material, then, subject to Section 8.3(c), from time to time, within thirty
(30) days after its receipt of a certificate from such Lender or Issuing Bank
(with a copy to the Administrative Agent) pursuant to subsection (c) below
setting forth in reasonable detail such determination and the basis thereof, the
Borrower shall pay to such Lender or Issuing Bank such additional amount or
amounts as will compensate such Lender or Issuing Bank for such reduction or the
Borrower may prepay all Eurocurrency Loans of such Lender or obtain the
cancellation of all such Letters of Credit.
(c) The Administrative Agent and each Lender and Issuing Bank that
determines to seek compensation or additional interest under this Section 8.3
shall give written notice to the Borrower and, in the case of a Lender or
Issuing Bank other than the Administrative Agent, the Administrative Agent of
the circumstances that entitle the Administrative Agent or such Lender or
Issuing Bank to such compensation no later than ninety (90) days after the
Administrative
64
Agent or such Lender or Issuing Bank receives actual notice or obtains actual
knowledge of the law, rule, order or interpretation or occurrence of another
event giving rise to a claim hereunder. In any event the Borrower shall not have
any obligation to pay any amount with respect to claims accruing prior to the
ninetieth day preceding such written demand. The Administrative Agent and each
Lender and Issuing Bank shall use reasonable efforts to avoid the need for, or
reduce the amount of, such compensation, additional interest, and any payment
under Section 3.3, including, without limitation, the designation of a different
Lending Office, if such action or designation will not, in the sole judgment of
the Administrative Agent or such Lender or Issuing Bank made in good faith, be
otherwise disadvantageous to it; provided that the foregoing shall not in any
way affect the rights of any Lender or Issuing Bank or the obligations of the
Borrower under this Section 8.3, and provided further that no Lender or Issuing
Bank shall be obligated to make its Eurocurrency Loans or Competitive Fixed Rate
Loans hereunder or fund any amount due in respect of a Letter of Credit at any
office located in the United States of America. A certificate of the
Administrative Agent or any Lender or Issuing Bank, as applicable, claiming
compensation or additional interest under this Section 8.3, and setting forth
the additional amount or amounts to be paid to it hereunder and accompanied by a
statement prepared by the Administrative Agent or such Lender or Issuing Bank,
as applicable, describing in reasonable detail the calculations thereof shall be
prima facie evidence of the correctness thereof. In determining such amount,
such Lender or Issuing Bank may use any reasonable averaging and attribution
methods.
Section 8.4. Lending Offices. The Administrative Agent and each Lender and
---------------
Issuing Bank may, at its option, elect to make or maintain its Loans and issue
its Letters of Credit hereunder at the Lending Office for each type of Loan or
Letter of Credit available hereunder or at such other of its branches, offices
or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Administrative Agent,providedthat, except in the
case of any such transfer to another of its branches, offices or affiliates made
at the request of the Borrower, the Borrower shall not be responsible for the
costs arising under Section 3.3 or 8.3 resulting from any such transfer to the
extent not otherwise applicable to such Lender or Issuing Bank prior to such
transfer.
Section 8.5. Discretion of Lender as to Manner of Funding. Subject to the
--------------------------------------------
other provisions of this Agreement, each Lender and Issuing Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans and
Letters of Credit in any manner it sees fit.
Section 8.6. Substitution of Lender or Issuing Bank. If (a) any Lender or
--------------------------------------
Issuing Bank has demanded compensation or additional interest or given notice of
its intention to demand compensation or additional interest under Section 8.3,
(b) the Borrower is required to pay any additional amount to any Lender or
Issuing Bank under Section 2.13, (c) any Lender or Issuing Bank is unable to
submit any form or certificate required under Section 3.3(b) or withdraws or
cancels any previously submitted form with no substitution therefor, (d) any
Lender or Issuing Bank gives notice of any change in law or regulations, or in
the interpretation thereof, pursuant to Section 8.1, (e) any Lender or Issuing
Bank has been declared insolvent or a receiver or conservator has been appointed
for a material portion of its assets, business or properties or (f) any Lender
or Issuing Bank shall seek to avoid its obligation to make or maintain Loans or
issue Letters of Credit hereunder for any reason, including, without limitation,
reliance upon 12 U.S.C.
65
Sec. 1821(e) or (n) (1) (B), (g) any taxes referred to in Section 3.3 have been
levied or imposed (or the Borrower determines in good faith that there is a
substantial likelihood that such taxes will be levied or imposed) so as to
require withholding or deductions by the Borrower or payment by the Borrower of
additional amounts to any Lender or Issuing Bank, or other reimbursement or
indemnification of any Lender or Issuing Bank, as a result thereof, (h) any
Lender shall decline to consent to a modification or waiver of the terms of this
Agreement or any other Credit Documents requested by the Borrower, or (i) the
Issuing Bank gives notice pursuant to Section 2.14(a)(ii) that the issuance of
the Letter of Credit would violate any legal or regulatory restriction then
applicable to such Issuing Bank, then and in such event, upon request from the
Borrower delivered to such Lender or Issuing Bank, and the Administrative Agent,
such Lender shall assign, in accordance with the provisions of Section 10.10 and
an appropriately completed Assignment Agreement, all of its rights and
obligations under the Credit Documents to another Lender or a commercial banking
institution selected by the Borrower and (in the case of a commercial banking
institution) reasonably satisfactory to the Administrative Agent, in
consideration for the payments set forth in such Assignment Agreement and
payment by the Borrower to such Lender of all other amounts which such Lender
may be owed pursuant to this Agreement, including, without limitation, Sections
2.13, 3.3, 8.3 and 10.13.
ARTICLE 9. THE AGENTS.
Section 9.1. Appointment and Authorization of Administrative Agent,
-----------------------------------------------------------
Co-Syndication Agents, Co-Documentation Agents and Managing Agents. Each Lender
- -------------------------------------------------------------------
hereby appoints STB as the Administrative Agent, ABN AMRO Bank N.V. and The
Royal Bank of Scotland plc as the Co-Syndication Agents, Bank of America, N.A.
and Wells Fargo Bank Texas, National Association as the Co-Documentation Agents,
And Citibank, N.A. ,Credit Lyonnais New York Branch and HSBC Bank USA, as
Managing Agents, under the Credit Documents and hereby authorizes the
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents and
the Managing Agents to take such action as Administrative Agent, Co-Syndication
Agents, Co-Documentation Agents and Managing Agents on each of its behalf and to
exercise such powers under the Credit Documents as are delegated to the
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents and
the Managing Agents, respectively, by the terms thereof, together with such
powers as are reasonably incidental thereto.
Section 9.2. Rights and Powers. The Administrative Agent, the
-------------------
Co-Syndication Agents, the Co-Documentation Agents and the Managing Agents shall
have the same rights and powers under the Credit Documents as any other Lender
and may exercise or refrain from exercising such rights and power as though it
were not an Administrative Agent, a Co-Syndication Agent, a Co-Documentation
Agent or a Managing Agent, and the Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents and the Managing Agents and their respective
Controlling Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any of its Subsidiaries or
Controlling Affiliates as if it were not an Administrative Agent, a
Co-Syndication Agent, a Co-Documentation Agent or a Managing Agent under the
Credit Documents. The term Lender as used in all Credit Documents, unless the
context otherwise clearly requires, includes the
66
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents and
the Managing Agents in their respective individual capacities as a Lender.
Section 9.3. Action by Administrative Agent, Co-Syndication Agents,
-----------------------------------------------------------
Co-Documentation Agents and Managing Agents. The obligations of the
- -----------------------------------------------
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents and
the Managing Agents under the Credit Documents are only those expressly set
forth therein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action concerning any
Default or Event of Default, except as expressly provided in Sections 7.2 and
7.4. Unless and until the Required Lenders (or, if required by Section 10.11,
all of the Lenders) give such direction (including, without limitation, the
giving of a notice of default as described in Section 7.1(c)), the
Administrative Agent may, except as otherwise expressly provided herein or
therein, take or refrain from taking such actions as it deems appropriate and in
the best interest of all the Lenders. In no event, however, shall the
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents or
the Managing Agents be required to take any action in violation of applicable
law or of any provision of any Credit Document, and each of the Administrative
Agent, the Co-Syndication Agents, the Co-Documentation Agents and the Managing
Agents shall in all cases be fully justified in failing or refusing to act
hereunder or under any other Credit Document unless it first receives any
further assurances of its indemnification from the Lenders that it may require,
including prepayment of any related expenses and any other protection it
requires against any and all costs, expenses, and liabilities it may incur in
taking or continuing to take any such action. The Administrative Agent shall be
entitled to assume that no Default or Event of Default, other than non-payment
of any scheduled principal or interest payment due hereunder, exists unless
notified in writing to the contrary by a Lender or the Borrower. In all cases in
which the Credit Documents do not require the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents or the Managing Agents to
take specific action, the Administrative Agent, each of the Co-Syndication
Agents, the Co-Documentation Agents and the Managing Agents shall be fully
justified in using its discretion in failing to take or in taking any action
thereunder. Any instructions of the Required Lenders, or of any other group of
Lenders called for under specific provisions of the Credit Documents, shall be
binding on all the Lenders and holders of Notes.
Section 9.4. Consultation with Experts. Each of the Administrative Agent,
-------------------------
the Co-Syndication Agents, the Co-Documentation Agents and the Managing Agents
may consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 9.5. Indemnification Provisions; Credit Decision. Neither the
----------------------------------------------
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents,
the Managing Agents nor any of their directors, officers, agents, or employees
shall be liable for any action taken or not taken by them in connection with the
Credit Documents (i) with the consent or at the request of the Required Lenders
(or, if required by Section 10.11, all of the Lenders), or (ii) in the absence
of their own gross negligence or willful misconduct. Neither the Administrative
Agent, the Co-Syndication Agents, the Co-Documentation Agents, the Managing
Agents nor any of their directors, officers, agents or employees shall be
responsible for or have any duty to ascertain,
67
inquire into or verify (i) any statement, warranty or representation made in
connection with this Agreement, any other Credit Document or any Borrowing; (ii)
the performance or observance of any of the covenants or agreements of the
Borrower or any Subsidiary contained herein or in any other Credit Document;
(iii) the satisfaction of any condition specified in Article 4, except receipt
of items required to be delivered to the Administrative Agent; or (iv) the
validity, effectiveness, genuineness, enforceability, value, worth or
collectability hereof or of any other Credit Document or of any other documents
or writings furnished in connection with any Credit Document; and the
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents and
the Managing Agents make no representation of any kind or character with respect
to any such matters mentioned in this sentence. The Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents and the Managing Agents may
execute any of their duties under any of the Credit Documents by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders or any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents and the Managing Agents shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, other document or statement (whether written or oral) believed by
it to be genuine or to be sent by the proper party or parties. In particular and
without limiting any of the foregoing, the Administrative Agent and the
Co-Documentation Agents shall have no responsibility for confirming the accuracy
of any Compliance Certificate or other document or instrument received by any of
them under the Credit Documents. The Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents and the Managing Agents may treat the payee
of any Note as the holder thereof until written notice of transfer shall have
been filed with such Administrative Agent signed by such owner in form
satisfactory to such Administrative Agent. Each Lender acknowledges that it has
independently, and without reliance on the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents or the Managing Agents or any
other Lender, obtained such information and made such investigations and
inquiries regarding the Borrower and its Subsidiaries as it deems appropriate,
and based upon such information, investigations and inquiries, made its own
credit analysis and decision to extend credit to the Borrower in the manner set
forth in the Credit Documents. It shall be the responsibility of each Lender to
keep itself informed about the creditworthiness and business, properties,
assets, liabilities, condition (financial or otherwise) and prospects of the
Borrower and its Subsidiaries, and the Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents and the Managing Agents shall have no
liability whatsoever to any Lender for such matters. The Administrative Agent,
the Co-Syndication Agents, the Co-Documentation Agents and the Managing Agents
shall have no duty to disclose to the Lenders information that is not required
by any Credit Document to be furnished by the Borrower or any Subsidiaries to
such Agent at such time, but is voluntarily furnished to such Agent (either in
their respective capacity as Administrative Agent, the Co-Syndication Agents,
the Co-Documentation Agents or the Managing Agents or in their individual
capacity).
Section 9.6. Indemnity. The Lenders shall ratably, in accordance with their
---------
Percentages, indemnify and hold the Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents, the Managing Agents, and their directors,
officers, employees, agents and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any
Credit Document or in connection with the transactions contemplated
68
thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by the Borrower and except to the extent that
any event giving rise to a claim was caused by the gross negligence or willful
misconduct of the party seeking to be indemnified. The obligations of the
Lenders under this Section 9.6 shall survive termination of this Agreement.
Section 9.7. Resignation of Agents and Successor Agents. The Administrative
------------------------------------------
Agent, the Co-Syndication Agents, the Co-Documentation Agents and the Managing
Agents may resign at any time and shall resign upon any removal thereof as a
Lender pursuant to the terms of this Agreement upon at least thirty (30) days'
prior written notice to the Lenders and the Borrower. Any resignation of the
Administrative Agent shall not be effective until a replacement therefor is
appointed pursuant to the terms hereof. Upon any such resignation of the
Administrative Agent or any Co-Syndication Agent, the Co-Documentation Agent or
Managing Agent, the Required Lenders and, so long as no Event of Default shall
then exist, with the consent of the Borrower (which consent shall not be
unreasonably withheld or delayed) shall have the right to appoint a successor
Administrative Agent, Co-Syndication Agent, Co-Documentation Agent or Managing
Agent, as the case may be. If no successor Administrative Agent, Co-Syndication
Agent, Co-Documentation Agent or Managing Agent, as the case may be, shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's,
Co-Syndication Agent's, Managing Agent's or Co-Documentation Agent's giving of
notice of resignation, then the retiring Administrative Agent, Co-Syndication
Agent, Co-Documentation Agent or Managing Agent, as the case may be, may, on
behalf of the Lenders and, so long as no Event of Default shall then exist, with
the consent of the Borrower (which consent shall not be unreasonably withheld or
delayed) appoint a successor Administrative Agent, Co-Syndication Agent,
Co-Documentation Agent or Managing Agent, as the case may be, which shall be any
Lender hereunder or any commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance of its appointment as
the Administrative Agent, the Co-Syndication Agent, the Co-Documentation Agent
or the Managing Agent hereunder, such successor Administrative Agent,
Co-Syndication Agent, Co-Documentation Agent or Managing Agent, as the case may
be, shall thereupon succeed to and become vested with all the rights and duties
of the retiring Administrative Agent, Co-Syndication Agent, Co-Documentation
Agent or Managing Agent, as the case may be, under the Credit Documents, and the
retiring Administrative Agent, Co-Syndication Agent, Co-Documentation Agent or
the Managing Agent shall be discharged from its duties and obligations
thereunder. After any retiring Administrative Agent's, Co-Syndication Agent's,
Co-Documentation Agent's or Managing Agent's resignation hereunder as
Administrative Agent, Co-Syndication Agent, Co-Documentation Agent or Managing
Agent, as the case may be, the provisions of this Article 9 and all protective
provisions of the other Credit Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent,
Co-Syndication Agent, Co-Documentation Agent or Managing Agent, as the case may
be.
ARTICLE 10. MISCELLANEOUS.
69
Section 10.1. No Waiver. No delay or failure on the part of the
----------
Administrative Agent or any Lender or Issuing Bank, or on the part of the holder
or holders of any Notes, in the exercise of any power, right or remedy under any
Credit Document shall operate as a waiver thereof or as an acquiescence in any
default, nor shall any single or partial exercise thereof preclude any other or
further exercise of any other power, right or remedy. To the fullest extent
permitted by applicable law, the powers, rights and remedies under the Credit
Documents of the Administrative Agent, the Lenders, the Issuing Bank and the
holder or holders of any Notes are cumulative to, and not exclusive of, any
powers, rights or remedies any of them would otherwise have.
Section 10.2. Non-Business Day. Subject to Section 2.6, if any payment of
----------------
principal or interest on any portion of any Loan, any Reimbursement Obligation,
or any other Obligation shall fall due on a day which is not a Business Day,
interest or fees (as applicable) at the rate, if any, such portion of any Loan,
any Reimbursement Obligation, or other Obligation bears for the period prior to
maturity shall continue to accrue in the manner set forth herein on such
Obligation from the stated due date thereof to the next succeeding Business Day,
on which the same shall instead be payable.
Section 10.3. Documentary Taxes. The Borrower agrees that it will pay any
-----------------
documentary, stamp or similar taxes payable with respect to any Credit Document,
including interest and penalties, in the event any such taxes are assessed
irrespective of when such assessment is made, other than any such taxes imposed
as a result of any transfer of an interest in a Credit Document. Each Lender and
Issuing Bank that determines to seek compensation under this Section 10.3 shall
give written notice to the Borrower and, in the case of a Lender or Issuing Bank
other than the Administrative Agent, the Administrative Agent of the
circumstances that entitle such Lender or Issuing Bank to such compensation no
later than ninety (90) days after such Lender or Issuing Bank receives actual
notice or obtains actual knowledge of the law, rule, order or interpretation or
occurrence of another event giving rise to a claim hereunder. In any event, the
Borrower shall not have any obligation to pay any amount with respect to claims
accruing prior to the 90th day preceding such written demand.
Section 10.4. Survival of Representations. All representations and\
-----------------------------
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as the Borrower has any Obligation hereunder or any
Commitment hereunder is in effect.
Section 10.5. Survival of Indemnities. All indemnities and all provisions
-----------------------
relative to reimbursement to the Lenders and Issuing Bank of amounts sufficient
to protect the yield of the Lenders and Issuing Bank with respect to the Loans
and the L/C Obligations, including, but not limited to, Section 2.13, Section
3.3, Section 7.6, Section 8.3, Section 10.3, and Section 10.13 hereof, shall,
subject to Section 8.3(c), survive the termination of this Agreement and the
other Credit Documents and the payment of the Loans and all other Obligations
and, with respect to any Lender or Issuing Bank, any replacement by the Borrower
of such Lender pursuant to the terms hereof, in each case for a period of one
(1) year.
70
Section 10.6. Setoff. In addition to any rights now or hereafter granted
------
under applicable law and not by way of limitation of any such rights, upon the
occurrence of, and throughout the continuance of, any Event of Default, each
Lender and Issuing Bank and each subsequent holder of any Note is hereby
authorized by the Borrower at any time or from time to time, without notice to
the Borrower or any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and to apply any and all deposits (general or
special, including, but not limited to, Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts, and
in whatever currency denominated) and any other Indebtedness at any time owing
by that Lender or that subsequent holder to or for the credit or the account of
the Borrower, whether or not matured, against and on account of the due and
unpaid obligations and liabilities of the Borrower to that Lender or Issuing
Bank or that subsequent holder under the Credit Documents, irrespective of
whether or not that Lender or Issuing Bank or that subsequent holder shall have
made any demand hereunder. Each Lender or Issuing Bank shall promptly give
notice to the Borrower of any action taken by it under this Section
10.6,provided that any failure of such Lender or Issuing Bank to give such
notice to the Borrower shall not affect the validity of such setoff. Each Lender
and Issuing Bank agrees with each other Lender and Issuing Bank a party hereto
that if such Lender or Issuing Bank receives and retains any payment, whether by
setoff or application of deposit balances or otherwise, in respect of the Loans
or L/C Obligations in excess of its ratable share of payments on all such
Obligations then owed to the Lenders and Issuing Bank hereunder, then such
Lender or Issuing Bank shall purchase for cash at face value, but without
recourse, ratably from each of the other Lenders such amount of the Loans and
L/C Obligations and participations therein held by each such other Lender as
shall be necessary to cause such Lender or Issuing Bank to share such excess
payment ratably with all the other Lenders;provided, however, that if any such
purchase is made by any Lender or Issuing Bank, and if such excess payment or
part thereof is thereafter recovered from such purchasing Lender or Issuing
Bank, the related purchases from the other Lenders or Issuing Bank shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest.
Section 10.7. Notices. Except as otherwise specified herein, all notices
-------
under the Credit Documents shall be in writing (including cable, telecopy or
telex) and shall be given to a party hereunder at its address, telecopier number
or telex number set forth below or such other address, telecopier number or
telex number as such party may hereafter specify by notice to the Administrative
Agent and the Borrower, given by courier, by United States certified or
registered mail, by telegram or by other telecommunication device capable of
creating a written record of such notice and its receipt. Notices under the
Credit Documents to the Lenders, the Administrative Agent and the Issuing Bank
shall be addressed to their respective addresses, telecopier or telex number, or
telephone numbers set forth on the signature pages hereof, and to the Borrower
to:
Transocean Inc.
4 Greenway Plaza
Houston, Texas 77046
Attention: Gregory Cauthen
Telephone No.: (713) 232-7487
Fax No.: (713) 232-7033
71
With a copy to:
Baker Botts LLP
One Shell Plaza
Houston, Texas 77002-4995
Attention: Stephen Krebs
Telephone No. (713) 229-1467
Fax No.: (713) 229-1522
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section 10.7, on the signature pages hereof or pursuant to
Section 10.10 and a confirmation of receipt of such telecopy has been received
by the sender, (ii) if given by courier, when delivered, (iii) if given by mail,
five (5) days after such communication is deposited in the mail, certified or
registered with return receipt requested, or (iv) if given by any other means,
when delivered at the addresses specified in this Section 10.7, on the signature
pages hereof or pursuant to Section 10.10; provided that any notice given
pursuant to Article 2 shall be effective only upon receipt and, provided
further, that any notice that but for this proviso would be effective after the
close of business on a Business Day or on a day that is not a Business Day shall
be effective at the opening of business on the next Business Day.
Section 10.8. Counterparts. This Agreement may be executed in any number of
------------
counterparts, and by the different parties on different counterpart signature
pages, each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same Agreement.
Section 10.9. Successors and Assigns. This Agreement shall be binding upon
----------------------
the Borrower, each of the Lenders, the Issuing Bank, the Administrative Agent,
the Co-Syndication Agents, the Co-Documentation Agents, the Managing Agents, and
their respective successors and assigns, and shall inure to the benefit of the
Borrower, each of the Lenders, the Issuing Bank, the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents, the Managing Agents, and
their respective successors and assigns, including any subsequent holder of any
Note; provided, however, the Borrower may not assign any of its rights or
obligations under this Agreement or any other Credit Document without the
written consent of all Lenders, the Issuing Bank, the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents and the Managing Agents, and
the Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents
and the Managing Agents may not assign any of their respective rights or
obligations under this Agreement or any Credit Document except in accordance
with Article 9 and no Lender or Issuing Bank may assign any of its rights or
obligations under this Agreement or any other Credit Document except in
accordance with Section 10.10. Any Lender or Issuing Bank may at any time pledge
or assign all or any portion of its rights under this Agreement and the Notes
issued to it (i) to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender, or (ii) in the case of any Lender that
is a fund comprised in whole or in part of commercial loans, to a trustee for
such fund in support of such Lender's obligations to such trustee; provided that
no such pledge or assignment shall release a
72
Lender or Issuing Bank from any of its obligations hereunder or substitute any
such Federal Reserve Bank or such trustee for such Lender as a party hereto and
the Borrower, the Administrative Agent and the other Lenders shall continue to
deal solely with such Lender or Issuing Bank in connection with the rights and
obligations of such Lender and Issuing Bank under this Agreement.
Section 10.10. Sales and Transfers of Borrowing and Notes; Participations
----------------------------------------------------------
in Borrowings and Notes.
- --------------------------
(a) Any Lender may, upon written notice to the Borrower, at any time
sell to one or more commercial banking or other financial or lending
institutions ("Participants") participating interests in any Commitment of such
Lender and Related Credit Extensions of such Lender hereunder, provided that no
Lender may sell any participating interests in any such Commitment or such
Related Credit Extensions hereunder without also selling to such Participant the
appropriate pro rata share of all such Lender's Commitment and Related Credit
Extensions hereunder (but excluding interests in respect of Competitive Loans),
and provided further that no Lender shall transfer, grant or assign any
participation under which the Participant shall have rights to vote upon or to
consent to any matter to be decided by the Lenders or the Required Lenders
hereunder or under any other Credit Document or to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) increase the amount of such Lender's Commitment
and such increase would affect such Participant, (ii) reduce the principal of,
or interest on, any of such Lender's Borrowings, or any fees or other amounts
payable to such Lender hereunder and such reduction would affect such
Participant, (iii) postpone any date fixed for any scheduled payment of
principal of, or interest on, any of such Lender's Borrowings, or any fees or
other amounts payable to such Lender hereunder and such postponement would
affect such Participant, or (iv) release any collateral security for any
Obligation, except as otherwise specifically provided in any Credit Document.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement, the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
such Lender shall retain the sole right to enforce the obligations of the
Borrower under any Credit Document. The Borrower agrees that if amounts
outstanding under this Agreement and the Notes shall have been declared or shall
have become due and payable in accordance with Section 7.2 or 7.3 upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that such right of setoff shall be subject to
the obligation of such Participant to share with the Lenders, and the Lenders
agree to share with such Participant, as provided in Section 10.6. The Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
2.13, 3.3 and 8.3 with respect to its participation in the Commitments and the
Borrowings outstanding from time to time, provided that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in
73
respect of the amount of the participation transferred if no participation had
been transferred and provided, further, that Sections 8.3(c) and 8.6 shall apply
to the transferor Lender with respect to any claim by any Participant pursuant
to Section 2.13, 3.3 or 8.3 as fully as if such claim was made by such Lender.
Anything herein to the contrary notwithstanding, the Borrower shall not, at any
time, be obligated to pay to any Lender any sum in excess of the sum the
Borrower would have been obligated to pay to such Lender hereunder if such
Lender had not sold any participation in its rights and obligations under this
Agreement or any other Credit Document.
(b) Any Lender may at any time sell to (i) any of such Lender's
affiliates or to any other Lender or any affiliate thereof that is a commercial
banking or other financial or lending institution not subject to Regulation T of
the Board of Governors of the Federal Reserve System and, (ii) with the prior
written consent of the Administrative Agent and the Borrower (which shall not be
unreasonably withheld or delayed), to one or more commercial banking or other
financial or lending institutions not subject to Regulation T of the Board of
Governors of the Federal Reserve System (any of (i) or (ii), a "Purchasing
Lender"), all or any part of its rights and obligations under this Agreement and
the other Credit Documents, pursuant to an Assignment Agreement in the form
attached as Exhibit 10.10, executed by such Purchasing Lender and such
--------------
transferor Lender (and, in the case of a Purchasing Lender which is not then a
Lender or an affiliate thereof, by the Borrower and the Administrative Agent)
and delivered to the Administrative Agent; provided that each such sale to a
Purchasing Lender (other than an existing Lender) shall be in an amount of
$5,000,000 (calculated as hereinafter set forth) or more, or if in a lesser
amount or if as a result of such sale the sum of the unfunded Commitment of such
Lender plus the aggregate principal amount of such Lender's Loans and
participations in Letters of Credits would be less than an amount of $5,000,000
(calculated as hereinafter set forth), such sale shall be of all of such
Lender's rights and obligations under this Agreement and all of the other Credit
Documents payable to it to one Purchasing Lender. Notwithstanding the
requirement of the Borrower's consent set forth above, but subject to all of the
other terms and conditions of this Section 10.10(b), any Lender may sell to one
or more commercial banking or other financial or lending institutions not
subject to Regulation T of the Board of Governors of the Federal Reserve System,
all or any part of their rights and obligations under this Agreement and the
other Credit Documents with only the consent of the Administrative Agent (which
shall not be unreasonably withheld or delayed) if an Event of Default shall have
occurred and be continuing. No Lender may sell or assign any portion of its
Commitment and Related Credit Extensions (excluding Competitive Loans) to a
Purchasing Lender without also selling to such Purchasing Lender (i) the
appropriate pro rata share of all such Lender's Commitment and Related Credit
Extensions hereunder (but excluding interests in respect of Competitive Loans),
and (ii) a pro rata amount of such Lender's loans (excluding loans made by such
Lender on a competitive bid basis pursuant to the Five-Year Credit Agreement),
borrowings, promissory notes, commitment, and any obligations and interests in
respect of letter of credit obligations under the Five-Year Credit Agreement
(but excluding interests in respect of loans made by such Lender on a
competitive bid basis thereunder); provided, however, that no such sale or
assignment shall be required in respect of any interests under the Five-Year
Credit Agreement where the Lender is effecting such sale or assignment under
this Agreement as a Non-Extending Lender pursuant to Section 2.16(c). For
purposes of calculating the satisfaction of the $5,000,000 minimum amount
requirement set forth in the first sentence of this Section 10.10(b) and in
Section 2.15(c), such amount shall be the sum of the total amount so sold and
assigned to
74
the Purchasing Lender pursuant to this Agreement and the total amount so sold
and assigned to the Purchasing Lender pursuant to the Five-Year Credit Agreement
in accordance with the immediately preceding sentence. Upon such execution,
delivery and acceptance, from and after the effective date of the transfer
determined pursuant to such Assignment Agreement, (x) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment Agreement, have the rights and obligations of a Lender hereunder with
a Commitment as set forth herein and (y) the transferor Lender thereunder shall,
to the extent provided in such Assignment Agreement, be released from its
obligations under this Agreement (and, in the case of an Assignment Agreement
covering all or the remaining portion of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease to be a
party hereto). Such Assignment Agreement shall be deemed to amend this Agreement
to the extent, and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Commitments and Percentages
arising from the purchase by such Purchasing Lender of all or a portion of the
rights and obligations of such transferor Lender under this Agreement, the Notes
and the other Credit Documents. On or prior to the effective date of the
transfer determined pursuant to such Assignment Agreement, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for any surrendered Note, a new Note as appropriate to the order of such
Purchasing Lender in an amount equal to the Commitments assumed by it pursuant
to such Assignment Agreement, and, if the transferor Lender has retained a
Commitment or Borrowing hereunder, a new Note to the order of the transferor
Lender in an amount equal to the Commitments or Borrowings retained by it
hereunder. Such new Notes shall be dated the Initial Availability Date and shall
otherwise be in the form of the Notes replaced thereby. The Notes surrendered by
the transferor Lender shall be returned by the Administrative Agent to the
Borrower marked "cancelled."
(c) Upon its receipt of an Assignment Agreement executed by a
transferor Lender, a Purchasing Lender and the Administrative Agent (and, in the
case of a Purchasing Lender that is not then a Lender or an affiliate thereof,
by the Borrower), together with payment by the transferor Lender to the
Administrative Agent hereunder of a registration and processing fee of $1,000
(unless the Borrower is replacing such Lender pursuant to the terms hereof, in
which event such fee shall be paid by the Borrower), the Administrative Agent
shall (i) promptly accept such Assignment Agreement, and (ii) on the effective
date of the transfer determined pursuant thereto give notice of such acceptance
and recordation to the Lenders and the Borrower. The Borrower shall not be
responsible for such registration and processing fee or any costs or expenses
incurred by any Lender, any Purchasing Lender or the Administrative Agent in
connection with such assignment except as provided above.
(d) If, pursuant to this Section 10.10 any interest in this Agreement
or any Loan or Note is transferred to any transferee which is organized under
the laws of any jurisdiction other than the United States of America or any
State thereof, the transferor Lender shall cause such transferee, concurrently
with the effectiveness of such transfer, (i) to represent to the transferor
Lender (for the benefit of the transferor Lender, the Administrative Agent and
the Borrower) that under applicable law and treaties no taxes will be required
to be withheld by the Administrative Agent, the Borrower or the transferor
Lender with respect to any payments to be made to such transferee in respect of
the Loans or the L/C Obligations, (ii) to furnish to the transferor Lender (and,
in the case of any Purchasing Lender, the Administrative Agent and the Borrower)
two
75
duly completed and signed copies of either U.S. Internal Revenue Service Form
W-8 BEN or U.S. Internal Revenue Service Form W-8 ECI or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities (wherein such transferee claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder), and (iii)
to agree (for the benefit of the transferor Lender, the Administrative Agent and
the Borrower) to provide the transferor Lender (and, in the case of any
Purchasing Lender, the Administrative Agent and the Borrower) new forms as
contemplated by Section 3.3(b) upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
(e) Notwithstanding any other provisions of this Section 10.10, no
transfer or assignment of the interests of any Lender hereunder or any grant of
participations therein shall be permitted if such transfer, assignment or grant
would require the Borrower to file a registration statement with the SEC or to
qualify the Loans, the Notes or any other Obligations under the securities laws
of any jurisdiction.
Section 10.11. Amendments, Waivers and Consents. Any provision of the
-----------------------------------
Credit Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrower, (b) the Required
Lenders, and (c) if the rights or duties of the Administrative Agent, the
Co-Syndication Agent, the Co-Documentation Agent or the Managing Agent are
affected thereby, the Administrative Agent, the Co-Syndication Agent, the
Co-Documentation Agent or the Managing Agent, as the case may be, provided that:
(i) no amendment or waiver shall (A) increase the Revolving Credit
Commitment Amount without the consent of all Lenders or increase any
Commitment of any Lender without the consent of such Lender, or (B)
postpone the Commitment Termination Date or Maturity Date without the
consent of all Lenders, or reduce the amount of or postpone the date for
any scheduled payment of any principal of or interest (including, without
limitation, any reduction in the rate of interest unless such reduction is
otherwise provided herein) on any Loan or Reimbursement Obligation or of
any fee payable hereunder, without the consent of each Lender owed any such
Obligation, or (C) release any Collateral for any Collateralized
Obligations (other than as provided in accordance with Section 7.4) without
the consent of all Lenders; and
(ii) no amendment or waiver shall, unless signed by each Lender,
change the provisions of this Section 10.11 or the definition of Required
Lenders or the number of Lenders required to take any action under any
other provision of the Credit Documents.
Section 10.12. Headings. Section headings used in this Agreement are for
--------
reference only and shall not affect the construction of this Agreement.
Section 10.13. Legal Fees, Other Costs and Indemnification. The Borrower,
-------------------------------------------
upon demand by the Administrative Agent, agrees to pay the reasonable fees and
disbursements of legal counsel to the Administrative Agent in connection with
the preparation and execution of
76
the Credit Documents (which shall be in an amount agreed in writing by the
Borrower), and any amendment, waiver or consent related thereto, whether or not
the transactions contemplated therein are consummated. The Borrower further
agrees to indemnify each Lender, Issuing Bank, the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents, the Managing Agents, and
their respective directors, officers, employees and attorneys (collectively, the
"Indemnified Parties"), against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all
reasonable attorneys' fees and other reasonable expenses of litigation or
preparation therefor, whether or not such Indemnified Party is a party thereto)
which any of them may pay or incur as a result of (a) any action, suit or
proceeding by any third party or governmental authority against such Indemnified
Party and relating to any Credit Document, the Loans, any Letter of Credit, or
the application or proposed application by any of the Borrower of the proceeds
of any Loan or use of any Letter of Credit, REGARDLESS OF WHETHER SUCH CLAIMS OR
ACTIONS ARE FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED SIMPLE OR CONTRIBUTORY
NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES AND/OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES OR ATTORNEYS, (b) any investigation of any third
party or any governmental authority involving any Lender (as a lender
hereunder), Issuing Bank, or the Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents or the Managing Agents (in such capacity
hereunder) and related to any use made or proposed to be made by the Borrower of
the proceeds of any Loan, or use of any Letter of Credit or any transaction
financed or to be financed in whole or in part, directly or indirectly with the
proceeds of any Loan or Letter of Credit, and (c) any investigation of any third
party or any governmental authority, litigation or proceeding involving any
Lender (as a lender hereunder) or the Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents or the Managing Agents (in such capacity
hereunder) and related to any environmental cleanup, audit, compliance or other
matter relating to any Environmental Law or the presence of any Hazardous
Material (including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any Environmental
Law) with respect to the Borrower, regardless of whether caused by, or within
the control of, the Borrower; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for any of the foregoing arising
out of such Indemnified Party's gross negligence or willful misconduct, as
determined pursuant to a final nonappealable judgment of a court of competent
jurisdiction or as expressly agreed in writing by such Indemnified Party. The
Borrower, upon demand by the Administrative Agent, the Co-Syndication Agents,
the Co-Documentation Agents, the Managing Agents or a Lender or Issuing Bank at
any time, shall reimburse such Agent or such Lender or Issuing Bank for any
reasonable legal or other expenses incurred in connection with investigating or
defending against any of the foregoing, except if the same is excluded from
indemnification pursuant to the provisions of the preceding sentence. Each
Indemnified Party agrees to contest any indemnified claim if requested by the
Borrower, in a manner reasonably directed by the Borrower, with counsel selected
by the Indemnified Party and approved by the Borrower, which approval shall not
be unreasonably withheld or delayed. Any Indemnified Party that proposes to
settle or compromise any such indemnified claim shall give the Borrower written
notice of the terms of such proposed settlement or compromise reasonably in
advance of settling or compromising such claim or proceeding and shall obtain
the Borrower's prior written consent thereto, which consent shall not be
unreasonably withheld or delayed; provided that the Indemnified Party shall not
be
77
restricted from settling or compromising any such claim if the Indemnified Party
waives its right to indemnity from the Borrower in respect of such claim.
Section 10.14. Governing Law; Submission to Jurisdiction; Waiver of Jury
----------------------------------------------------------
Trial.
- -----
(A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THE RIGHTS AND
DUTIES OF THE PARTIES THERETO, SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(B) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO
AGREE THAT ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS, THE MANAGING AGENTS, THE
CO-SYNDICATION AGENTS, THE LENDERS, THE ISSUING BANK, OR THE BORROWER MAY BE
BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
BOROUGH OF MANHATTAN OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. THE BORROWER HEREBY IRREVOCABLY DESIGNATES
CT CORPORATION SYSTEM, 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE
DESIGNEE, APPOINTEE AND AGENT OF THE BORROWER TO RECEIVE, FOR AND ON BEHALF OF
THE BORROWER, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT HERETO. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY,
78
THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT
AND THE OTHER CREDIT DOCUMENTS.
(C) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY
HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(D) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.7. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 10.15. Confidentiality. Each of the Agents, Issuing Bank and
---------------
Lenders agree to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to their respective
affiliates and to prospective Purchasing Lenders and Participants and their
respective directors, officers, employees and agents, including accountants,
legal counsel and other advisors who have reason to use such Information in
connection with the evaluation of the transactions contemplated by this
Agreement (subject to similar confidentiality provisions as provided herein)
solely for purposes of evaluating such Information, (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable law or
regulation or by any subpoena or similar legal process, (iv) in connection with
the exercise of any remedies hereunder or any proceedings relating to this
Agreement or the other Credit Documents, (v) with the consent of the Borrower,
or (vi) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section 10.15, or (y) becomes available on a
non-confidential basis from a source other than the Borrower or its affiliates
or the Lenders or their respective affiliates. For purposes hereof,
"Information" means all information received by the Lenders from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Lenders on a non-confidential basis prior to disclosure by
the Borrower. The Lenders shall be considered to have complied with their
respective obligations if they have exercised the same degree of care to
maintain the confidentiality of such Information as they would accord their own
confidential information.
Section 10.16. Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which the Borrower, the Administrative Agent, and
each Lender have signed and delivered to the Administrative Agent a counterparty
signature page hereto or, in the case of a Lender, the Administrative Agent has
received a facsimile notice that such a counterpart has been signed and mailed
to the Administrative Agent.
79
Section 10.17. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.18. Currency Conversion. All payments of Obligations under this
-------------------
Agreement, the Notes or any other Credit Document shall be made in Dollars. If
any payment of any Obligation, whether through payment by the Borrower or the
proceeds of any collateral, shall be made in a currency other than Dollars, such
amount shall be converted into Dollars at the current market rate for the
purchase of Dollars with the currency in which such obligation was paid, as
quoted by the Lender who is the Administrative Agent in accordance with the
methods customarily used by such Lender for such purposes as of the time of such
determination. The parties hereto hereby agree, to the fullest extent that they
may effectively do so under applicable law, that (i) if for the purposes of
obtaining any judgment or award it becomes necessary to convert from any
currency other than Dollars into Dollars any amount in connection with the
Obligations, then the conversion shall be made as provided above on the Business
Day before the day on which the judgment or award is given, (ii) in the event
that there is a change in the rate of exchange prevailing between the Business
Day before the day on which the judgment or award is given and the date of
payment, the Borrower will pay to the Administrative Agent, for the benefit of
the Lenders, such additional amounts (if any) as may be necessary, and the
Administrative Agent, on behalf of the Lenders, will pay to the Borrower such
excess amounts (if any) as result from such change in the rate of exchange, to
assure that the amount paid on such date is the amount in such other currency,
which when converted at the rate of exchange described herein on the date of
payment, is the amount then due in Dollars, and (iii) any amount due from the
Borrower under this Section 10.18 shall be due as a separate debt and shall not
be affected by judgment or award being obtained for any other sum due.
Section 10.19. Change in Accounting Principles, Fiscal Year or Tax Laws. If
--------------------------------------------------------
(i) any change in accounting principles from those used in the preparation of
the financial statements of the Borrower referred to in Section 5.9 is hereafter
occasioned by the promulgation of rules, regulations, pronouncements and
opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions), and such change materially affects the
calculation of any component of any financial covenant, standard or term found
in this Agreement, or (ii) there is a material change in federal or foreign tax
laws which materially affects any of the Borrower and its Subsidiaries' ability
to comply with the financial covenants, standards or terms found in this
Agreement, the Borrower and the Lenders agree to enter into negotiations in
order to amend such provisions (with the agreement of the Required Lenders or,
if required by Section 10.11, all of the Lenders) so as to equitably reflect
such changes with the desired result that the criteria for evaluating any of the
Borrower's and its Subsidiaries' financial condition shall be the same after
such changes as if such changes had not been made. Unless and until such
provisions have been so amended, the provisions of this Agreement shall govern.
80
Section 10.20. Final Agreement. The Credit Documents constitute the entire
---------------
understanding among the Credit Parties, the Lenders, the Issuing Bank, and the
Administrative Agent and supersede all earlier or contemporaneous agreements,
whether written or oral, concerning the subject matter of the Credit Documents.
THIS WRITTEN AGREEMENT TOGETHER WITH THE OTHER CREDIT DOCUMENTS REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 10.21. Officer's Certificates. It is not intended that any
-----------------------
certificate of any officer of the Borrower delivered to the Administrative Agent
or any Lender pursuant to this Agreement shall give rise to any personal
liability on the part of such officer.
Section 10.22. Effect of Inclusion of Exceptions. It is not intended that
---------------------------------
the specification of any exception to any covenant herein shall imply that the
excepted matter would, but for such exception, be prohibited or required.
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
BORROWER:
--------
TRANSOCEAN INC.,
a Cayman Islands company
By:______________________________
Name:
Title:
Attest:__________________________
Name:
Title:
SUNTRUST BANK,
As Administrative Agent, Issuing Bank,
and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $18,000,000
PERCENTAGE: 7.2%
Address for Notices:
- -------------------
SunTrust Bank
SunTrust Plaza
303 Peachtree Street, N.E., 10th Floor
Atlanta, GA 30308
Attn: Mr. John Fields
Telephone No.: 404/724-3667
Telecopy No.: 404/827-6270
Lending Office:
- --------------
SunTrust Bank
SunTrust Plaza
303 Peachtree Street, N.E., 10th Floor
Atlanta, GA 30308
Attn: Mr. John Fields
Telephone No.: 404/724-3667
Telecopy No.: 404/827-6270
Payment Instructions:
- --------------------
Bank Name: SunTrust Bank
ABA Number: 061 000 104
City, State: Atlanta, Georgia
Account Number: 908 8000 112
Attention: Pat Etheridge 404/588-8358
Reference: Transocean Inc.
ABN AMRO BANK, N.V.,
As Co-Syndication Agent and a Lender
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $17,000,000
PERCENTAGE: 6.80%
Address for Notices:
- -------------------
ABN AMRO Bank, N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Melanie Drzazga
Telephone No.: 312/992-5135
Telecopy No.: 312/992-5111
with a copy to:
ABN AMRO Bank, N.V.
4400 Oak Parkway, Suite 1500
Houston, TX 77056
Attn: Stuart Murray
Telephone No.: 832/681-7158
Telecopy No.: 832/681-7145
Lending Office:
- --------------
ABN AMRO Bank, N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Loan Administration
Telephone No.: 312/992-5150
Telecopy No.: 312/992-5155
ABN AMRO BANK, N.V., (CONTINUED)
As Co-Syndication Agent and a Lender
Letter of Credit:
- ----------------
ABN AMRO Bank N.V.
200 West Monroe Street, Suite 1100
Chicago, IL 60608-5002
Payment Instructions:
- --------------------
Bank Name: ABN AMRO Bank, N.V.
ABA Number: 026009580
City, State: New York, NY
Account Name: F/O ABN AMRO Bank, N.V.
Chicago Branch CPU
Account Number: 650-001-178941
Attention:
Reference: CPU 00193232 - Transocean Sedco
Letters of Credit:
- -----------------
Bank Name: ABN AMRO Bank, N.V.
ABA Number: 026009580
City, State: New York, NY
Account Name: F/O ABN AMRO Bank, N.V.
Chicago Trade Services CPU
Account Number: 653-001 1738 41
Attention:
Reference: Transocean
THE ROYAL BANK OF SCOTLAND PLC,
As Co-Syndication Agent and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $17,000,000
PERCENTAGE: 6.80%
Address for Notices:
- -------------------
The Royal Bank of Scotland plc
600 Travis Street, Suite 6070
Houston, TX 77002
Attn: Iris Munoz, AVP
Telephone No.: 713/221-2409
Telecopy No.: 713/221-2430
Lending Office:
- --------------
The Royal Bank of Scotland plc
101 Park Avenue, 12th floor
New York, NY 10178
Attn: Sheila Shaw
Telephone No.: 212/401-1406
Telecopy No.: 212/401-1494
Payment Instructions:
- --------------------
Bank Name: Chase Manhattan Bank
ABA Number: 021000021
City/State: New York, New York
Account Name: The Royal Bank of Scotland plc
Account Number: 400931052
Reference: Transocean Inc.
BANK OF AMERICA, N.A.,
As Co-Documentation Agent and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $17,000,000
PERCENTAGE: 6.80%
Address for Notices:
- -------------------
Bank of America, N.A.
700 Louisiana St. 8th floor
Houston, TX 77002
Attn: Claire Luis, Managing Director
Telephone No.: 713/247-7735
Telecopy No.: 713/247-7286
Lending Office:
- --------------
Bank of America, N.A.
901 Main Street
Dallas, TX 75202
Attn: Karen Dumond
Customer Service Representative
Telephone No.: 214/209-2119
Telecopy No.: 214/290-9462
Payment Instructions:
- --------------------
Bank Name: Bank of America, N.A.
ABA Number: #111000012
City, State: Dallas, TX
Account Number: 1292000883
Attention: Karen Dumond
Reference: Transocean Inc.
WELLS FARGO BANK TEXAS,
NATIONAL ASSOCIATION,
As Co-Documentation Agent and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $17,000,000
PERCENTAGE: 6.80%
Address for Notices:
- -------------------
Wells Fargo Bank Texas, National Association
1000 Louisiana
3rd Floor, Energy Department
Houston, TX 77002
Attn: Eric Hollingsworth, Vice President
Telephone No.: 713/319-1354
Telecopy No.: 713/739-1087
Lending Office:
- --------------
Wells Fargo Bank Texas, National Association
1740 Broadway
Denver, CO 80274
Attn: Tanya Ivie, Production Manager
Telephone No.: 303/863-6102
Telecopy No.: 303/863-2729
WELLS FARGO BANK TEXAS, (CONTINUED)
NATIONAL ASSOCIATION,
As Co-Documentation Agent and a Lender
Payment Instructions:
- --------------------
Bank Name: Wells Fargo Bank
ABA Number: 121-000-248
City, State: Denver, CO
Account Number: 2969507201
Attention: Syndicated Loans
Reference: Transocean - Obligor 9051645463, Obligation 406
THE BANK OF NOVA SCOTIA,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $14,000,000
PERCENTAGE: 5.60%
Address for Notices:
- -------------------
The Bank of Nova Scotia
Houston Representative Office
1100 Louisiana, Suite 3000
Houston, TX 77002
Attn: Randy Craft
Telephone No.: 713/759-3433
Telecopy No.: 713/752-2425
The Bank of Nova Scotia
Houston Representative Office
1100 Louisiana, Suite 3000
Houston, TX 77002
Attn: Mike Roberts
Telephone No.: 713/759-3449
Telecopy No.: 713/752-2425
Lending Office:
- --------------
PRIMARY SECONDARY
The Bank of Nova Scotia The Bank of Nova Scotia
Atlanta Agency Atlanta Agency
Suite 2700, 600 Peachtree St. NE Suite 2700, 600 Peachtree St. NE
Atlanta, GA 30308 Atlanta, GA 30308
Attn: Donna Gardner Attn: Michelle Wingard
Telephone No.: 404/877-1559 Telephone No.: 404/877-1562
Telecopy No.: 404/888-8998 Telecopy No.: 404/888-8998
THE BANK OF NOVA SCOTIA, (CONTINUED)
As a Lender
Domestic and Eurodollar Lending Office:
- --------------------------------------
The Bank of Nova Scotia
Atlanta Agency
Suite 2700, 600 Peachtree Street, N.E.
Atlanta, GA 30308
Payment Instructions:
- --------------------
Bank Name: The Bank of Nova Scotia, New York Agency
ABA Number: 026002532
City, State: New York, NY
Account Name: BNS Atlanta Agency
Account Number: #0606634
Reference: Transocean Inc.
CREDIT LYONNAIS NEW YORK BRANCH,
As a Managing Agent and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $16,000,000
PERCENTAGE: 6.40%
Address for Notices:
- -------------------
Credit Lyonnais
1301 Travis Street
Suite 2100
Houston, TX 77002
Attn: Page Dillehunt
Telephone No.: 713/890-8611
Telecopy No.: 713/890-8668
Credit Lyonnais
1301 Avenue of the Americas
New York, NY 10019
Attn: Gener David
Telephone No.: 212/241-7741
Telecopy No.: 917/849-5440
Domestic and Eurodollar Lending Office:
- --------------------------------------
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
CREDIT LYONNAIS NEW YORK BRANCH,
As a Managing Agent and a Lender (CONTINUED)
Payment Instructions:
- --------------------
Bank Name: Credit Lyonnais New York
ABA Number: 026008073
City, State: New York, NY
Account Number: 01-88179-3701-00-179
Reference: Transocean
HSBC BANK USA
As a Managing Agent and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $16,000,000
PERCENTAGE: 6.40%
Address for Notices:
- -------------------
HSBC Bank USA
452 Fifth Avenue, 5th Floor
New York, NY 10018
Attn: George Linhart
Vice President
Telephone No.: 212/575-3326
Telecopy No.: 212/575-2469
Lending Office:
- --------------
HSBC Bank USA
One HSBC Center 26th Floor
Buffalo, NY 14203
Attn: Marie Bax
Loan Administrator
Telephone No.: 716/841-5668
Telecopy No.: 716/841-0269
Payment Instructions:
- --------------------
Bank Name: HSBC Bank USA
ABA Number: 021 001 088
Account Name: Syndication & Assets Trading
Account Number: 001-940503
Attention: Maria Bax
Reference:______________________________
WESTLB AG, NEW YORK BRANCH,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $14,000,000
PERCENTAGE: 5.60%
Address for Notices:
- -------------------
West LB AG,
New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attn: Daniel Palermo
Associate Director, Loan Administration
Telephone No.: 212/852-6152
Telecopy No.: 212/302-7946
Lending Office:
- --------------
WestLB AG,
New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attn: Jeffrey S. Davidson
Telephone No.: 212/852-6204
Telecopy No.: 212/852-6148
Payment Instructions:
- --------------------
Bank Name: The Chase Manhattan Bank, N.A.
1 Chase Manhattan Plaza, New York, NY
ABA Number: 021-000-021
Account Name: WestLB AG, New York Branch
Account Number: 9201060663
Reference: Transocean Sedco Forex
THE BANK OF TOKYO-MITSUBISHI, LTD.
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $7,000,000
PERCENTAGE: 2.80%
Address for Notices:
- -------------------
The Bank of Tokyo-Mitsubishi, Ltd.
1100 Louisiana Street
Suite 2800
Houston, TX 77002
Attn: Damain Sullivan
Telephone No.: 713/655-1808
Telecopy No.: 713/655-3855
Lending Office:
- --------------
The Bank of Tokyo-Mitsubishi, Ltd.
1100 Louisiana Street
Suite 2800
Houston, TX 77002
Attn: Nadra Breir
Telephone No.: 713/655-3847
Telecopy No.: 713/658-0116
Payment Instructions:
- --------------------
Bank Name: The Bank of Tokyo-Mitsubishi, Ltd. - New York
ABA Number: 026009632
City, State: New York, New York
Account Name: The Bank of Tokyo-Mitsubishi, Ltd. - Houston Agency
Account Number: 30001710
Attention: Nadra Breir
Reference: Transocean Inc.
BANK ONE, N.A.
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $8,000,000
PERCENTAGE: 3.20%
Address for Notices:
- -------------------
Bank One, N.A.
Bank One Center
910 Travis, 6th Floor
Houston, TX 77002
Attn: Dianne Russell
Telephone No.: 713/751-3679
Telecopy No.: 713/751-3982
Borrowings, Payments, Interest, Etc.
- ------------------------------------
Bank One, N.A.
1 Bank One Plaza
0634, 1FNP, 10th Floor
Chicago, IL 60670
Attn: John Beirne
Telephone No.: 312/732-3659
Telecopy No.: 312/732-4840
Domestic Lending Office:
- -----------------------
Bank One, N.A.
1 Bank One Plaza
0634, 1FNP, 10th Floor
Chicago, IL 60670
BANK ONE, N.A. (CONTINUED)
As a Lender
Eurodollar Lending Office:
- -------------------------
Bank One, NA
1 Bank One Plaza
Suite 0634, 10th Floor
Chicago, IL 60670
Payment Instructions:
- --------------------
Bank Name: Bank One, Texas
ABA Number: 11100064
City, State: Dallas, TX
Account Number: 2453265212
Account Name: LSII Incoming Clearing A/C
Attention: Nancy Daniel
Reference: Transocean Inc.
THE BANK OF NEW YORK
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $14,000,000
PERCENTAGE: 5.60%
Address for Notices:
- -------------------
The Bank of New York
One Wall Street, 19th Floor
New York, NY 10286
Attn: Peter Keller
Telephone No.: 212/635-7861
Telecopy No.: 212/635-7923
Domestic Borrowings: Payment Instructions:
- ------------------- --------------------
The Bank of New York Bank Name: The Bank of New York
101 Barclay Street ABA Number: 021000018
New York, NY 10286 City, State: New York, NY
Attn: Bill Barbiero Account Name: Comm. Loan Servicing Dept.
Commercial Loan Servicing Account Number: 111 556
Department Attention: Bill Barbiero
Telephone No.: Reference: Transocean Inc.
Telecopy No.:
Eurodollar Lending Office:
- -------------------------
The Bank of New York Bank Name: The Bank of New York
101 Barclay Street ABA Number: 021000018
New York, NY 10286 City, State: New York, NY
Attn: Bill Barbiero Account Name: Comm. Loan Servicing Dept.
Commercial Loan Servicing Account Number: 111 556
Department Attention: Bill Barbiero
Telephone No.: Reference: Transocean Inc.
Telecopy No.:
THE BANK OF NEW YORK (CONTINUED)
As a Lender
Letters of Credit: Payment Instructions:
- ----------------- --------------------
The Bank of New York Bank Name: The Bank of New York
101 Barclay Street ABA Number: 021000018
New York, NY 10286 City, State: New York, NY
Attn: Venus McGregor Account Name: Trade Services Department
Trade Services Department Account Number: GLA #111115
Telephone No.: Attention: Venus McGregor
Telecopy No.: Reference: Transocean Sedco Forex Inc.
Domestic Borrowings: Payment Instructions:
- ------------------- --------------------
The Bank of New York Bank Name: The Bank of New York
101 Barclays Street ABA Number: 021000018
New York, NY 10286 City, State: New York, NY
Attn: Bill Barbiero Account Name: Comm. Loan Servicing Dept.
Commercial Loan Servicing Account Number: 111 556
Department Attention: Bill Barbiero
Telephone No.: Reference: Transocean Sedco Forex Inc.
Telecopy No.:
CITIBANK, N.A.,
As a Managing Agent and a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $16,000,000
PERCENTAGE: 6.40%
Address for Notices:
- -------------------
Citibank, N.A.
New York Shipping & Logistics
388 Greenwich Street, 23rd Floor
New York, NY 10013
Attn: Mark S. Johnson
Director
Telephone No.: 212/816-5435
Telecopy No.: 212/816-5429
Lending Office:
- --------------
Citibank, N.A.
Two Penns Way
Suite 200
New Castle, DE 19720
Attn: Tracey Pinkett
Telephone No.: 302/894-6078
Telecopy No.: 302/894-6120
Payment Instructions:
- --------------------
Bank Name: Citibank, N.A.
ABA Number: 021000089
City, State: New Castle, DE
Account Name: Shipping Concentration
Account Number: 4054-8046
Attention: Tracey Pinkett
Reference: Transocean Forex Inc.
CREDIT SUISSE FIRST BOSTON,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $7,000,000
PERCENTAGE: 2.80%
Address for Notices:
- -------------------
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
Attn: David Koczan
Associate
Telephone No.: 212/325-9096
Telecopy No.: 212/325-8314
Lending Office:
- --------------
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
Attn: Nimala Durgana
Telephone No.: 212/538-3525
Telecopy No.: 212/538-3477
Payment Instructions:
- --------------------
Bank Name: Bank of New York
ABA Number: 021 000 018
City, State: New York, NY
Account Name: CSFB NY Loan Clearing
Account Number: 890-0329-262
Attention: Client Services
Reference: Transocean Inc.
NORDEA BANK FINLAND PLC,
NEW YORK BRANCH,
(AS SUCCESSOR TO CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH),
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $8,000,000
PERCENTAGE: 3.20%
Address for Notices:
- -------------------
Nordea Bank Finland Plc,
New York Branch
11 West 42nd Street, 7th Floor
New York, NY 10036
Attn: Martin Lunder
Senior Vice President
Telephone No.: 212/827-4828
Telecopy No.: 212/827-4888
Lending Office:
- --------------
Nordea Bank Finland Plc,
New York Branch
437 Madison Avenue
New York, NY 10022
Attn: Thelma Dongallo
Assistant Treasurer
Telephone No.: 212/318-9300
Telecopy No.: 212/421-4420
NORDEA BANK FINLAND PLC, (CONTINUED)
NEW YORK BRANCH,
(AS SUCCESSOR TO CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH),
As a Lender
Payment Instructions:
- --------------------
Bank Name: Federal Reserve Bank of New York
ABA Number: 026 010 786
City, State: New York, NY
Account Name: Nordea Bank Finland Plc - New York Branch
Account Number: #52150000032201001
Attention: Credit Administration
Reference: Transocean Inc.
DEN NORSKE BANK ASA,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $8,000,000
PERCENTAGE: 3.20%
Address for Notices
- ---------------------
200 Park Avenue, 31st floor
New York, NY 10166
Attention: Thomas Zwick
Telephone: 212/681-3871
Telecopier: 212/681-4119
Lending Office:
- --------------
200 Park Avenue, 31st floor
New York, NY 10166
Attention: Thomas Zwick
Telephone: 212/681-3871
Telecopier: 212/681-4119
Payment Instructions:
- ---------------------
Bank Name: The Bank of New York
ABA Number: 021000018
City, State: New York, NY
Account Name: Den norske Bank, NY
Account Number:10768999
Reference: Transocean Inc.
MORGAN STANLEY BANK,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $14,000,000
PERCENTAGE: 5.60%
Address for Notices
- ---------------------
750 Seventh Avenue - 11th floor
New York, NY 10020
Attention: Joseph DiTomaso
Telephone: 212/537-1470
Telecopier: 212-537-1867
Lending Office:
- --------------
750 Seventh Avenue - 11th floor
New York, NY 10020
Attention: Larry Benison
Telephone: 212/537-1439
Telecopier: 212-537-1867
Payment Instructions:
- ---------------------
USD Payment Instructions:
- --------------------------
Bank Name: Citibank, N.A.
ABA Number: 021000089
City, State: New York, NY
Account Name: Morgan Stanley Bank
Account Number: 3044-0947
Attention: Robert Patrissi
Reference: Transocean
MORGAN STANLEY BANK,
AS A LENDER (CONTINUED)
Eurodollar Payment Instructions:
- --------------------------------
Bank Name: BNP-Paribas SA Paris
Swift Code: PARBFRPP
Account Name: Morgan Stanley Bank
Account Number: 47238A
Attention: Robert Patrissi
Reference: Transocean
SOUTHWEST BANK OF TEXAS,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $8,000,000
PERCENTAGE: 3.20%
Address for Notices
- ---------------------
Southwest Bank of Texas, N.A.
4400 Post Oak Parkway
Houston, TX 77027
Attn: Ann Greer
Lending Office:
- --------------
Southwest Bank of Texas, N.A.
4400 Post Oak Parkway
Houston, TX 77027
Attn: Ann Greer
Payment Instructions:
- ---------------------
Bank Name: Southwest Bank of Texas, N.A.
ABA Number: 113011258
City, State: Houston, TX
Account Name: Transocean, Inc.
Account Number: 16004774
Attention: Ann Greer
Reference: Transocean, Inc.
BNP PARIBAS,
As a Lender
By:______________________________
Name:
Title:
COMMITMENT AMOUNT: $14,000,000
PERCENTAGE: 5.6%
Address for Notices
- ---------------------
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: Joe Onischuk
Telephone: 713/982-1100
Telecopier: 713-659-6915
Lending Office:
- --------------
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: Leah Hughes
Telephone: 713/982-1126
Telecopier: 713-659-5305
Payment Instructions:
- ---------------------
Bank Name: BNP Paribas New York
ABA Number: 026007689
City, State: New York, NY
Account Name: BNP Paribas House
Account Number: 52131543461
Reference: Transocean Offshore
CERTIFICATION PURSUANT TO SECTION 906 OF
THE SARBANES-OXLEY ACT OF 2002 (SUBSECTIONS (A) AND (B)
OF SECTION 1350, CHAPTER 63 OF TITLE 18, UNITED STATES CODE)
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Subsections (a)
and (b) of Section 1350, Chapter 63 of Title 18, United States Code), I, Robert
L. Long, President and Chief Executive Officer of Transocean Inc., a Cayman
Islands corporation (the "Company"), hereby certify, to my knowledge, that:
(1) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2003 (the "Report") fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
Dated: May 9, 2003 /s/ Robert L. Long
-------------------------------------------
Name: Robert L. Long
President and Chief Executive Officer
The foregoing certification is being furnished solely pursuant to Section
906 of the Sarbanes-Oxley Act of 2002 (Subsections (a) and (b) of Section 1350,
Chapter 63 of Title 18, United States Code) and is not being filed as part of
the Report or as a separate disclosure document.
A signed original of this written statement required by Section 906 has
been provided to Transocean Inc. and will be retained by Transocean Inc. and
furnished to the Securities and Exchange Commission or its staff upon request.
CERTIFICATION PURSUANT TO SECTION 906 OF
THE SARBANES-OXLEY ACT OF 2002 (SUBSECTIONS (A) AND (B)
OF SECTION 1350, CHAPTER 63 OF TITLE 18, UNITED STATES CODE)
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Subsections (a)
and (b) of Section 1350, Chapter 63 of Title 18, United States Code), I, Gregory
L. Cauthen, Senior Vice President and Chief Financial Officer of Transocean
Inc., a Cayman Islands corporation (the "Company"), hereby certify, to my
knowledge, that:
(1) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2003 (the "Report") fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
Dated: May 9, 2003 /s/ Gregory L. Cauthen
---------------------------------------
Name: Gregory L. Cauthen
Senior Vice President and
Chief Financial Officer
The foregoing certification is being furnished solely pursuant to Section
906 of the Sarbanes-Oxley Act of 2002 (Subsections (a) and (b) of Section 1350,
Chapter 63 of Title 18, United States Code) and is not being filed as part of
the Report or as a separate disclosure document.
A signed original of this written statement required by Section 906 has
been provided to Transocean Inc. and will be retained by Transocean Inc. and
furnished to the Securities and Exchange Commission or its staff upon request.